Cornell University Library KFM6645.1.S63 A digest of the cases decided and report 3 1924 017 908 884 The original of tliis book is in tlie Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924017908884 DIGEST *■* CASES DECIDED AND REPORTED HIGH COURT OF EEEORS AND APPEALS SUPERIOR COURT OF CHANCERY STATE OF MISSISSIPPI. FROM 1818 TO 1847. \-^' ^'^'-^•^'(P W. C. J.MEDES, <^CouR<.c>'t/ ONE OF THE REPORTERS TO THE STATE. ANTE OMKIA, JUDICIA EEDDITA IN CUBIIS SUPREMIS ET PRINCIPAHBUS, ATfJUE CAUSIS GEAVIOBIBUS, PRiESERTIM DUBIIS, QU.EQ.UE ALIi^UlD HABENT DIFFICULTATIS AUT NOVITATISj DILIGENTEK ET CUM FIDE EXCIPIUNTO. JUDICIA ENIM ANCHOR.^ LHGUM SUNT, UT LEGES REIPUBLIC^. Bacon, De Augnnentis Sdentiarutn, Aphor. lxxiii. BOSTON: CHARLES C. LITTLE AND JAMES BROWN. 1847. jl lioi,^. Entered according to Act of Congress in the year 1847, By Chakles C. Little and James Bbown. In the Clerk's Office of the District Court of the District of Massachusetts. BOSTON : PRINTED BY FREEMAN AND BOLLES, DEVONSHIRE STREET. DEDICATION. TO THE HONORABLE WILLIAM L. SHARKEY, LL.D. chief justice of the state of mississippi. Deak Sir, I rejoice in the opportunity this publication affords me, to give a permanent expression of the admiration, esteem, and affection, I bear, towards you. Necessarily familiar, from my official position, with your judicial labors, I but echo the voice of the profession, when I say they Bvince a patient industry, rarely equalled ; are characterized by a discrimination and judgment, in the investigation and application of facts, of the highest order ; are marked by an ability seldom sur- passed, and are crowned with a spotless integrity. For fourteen years Chief Justice of the State, the substance of much of your labor is chronicled in this volume. It will bear testi- mony to the world, that the partiality of friends has not warped their judgment. I cannot hope, by this public expression of my opinion, to swell in the least degree your fame, which is already an indissoluble part of the history of the state. I dedicate this book to you, as a feeble testimony of my appreciation of your public services, my esteem for your social and private virtues, and my affection for you per- sonally. Your friend, W. C. Smedes. V1CK6BORG, April 2, 1847. ADYEETISEMENT. I HAVE prepared this Digest for the press amid a variety of duties and labor, that necessarily prevented as much care in its preparation, as, under other circum- stances, I would have bestowed. It differs in its plan from other Digests in but one par- ticular. It never refers the reader, when in search of a principle, to any other head than the one under which he may be looking, without, at the same time, informing hinl of the substance of what will be found under the head referred to ; so that he need not suspend his search 'to examine the reference unless it be on the point to which his attention is directed. I have not been anxious to subdivide the different heads under which I have arranged the subjects, beyond what was absolutely indispensable for the convenience of the reader. Most matters, arranged under one head, VI ADVERTISEMENT. might with propriety and even advantage be arranged under many subdivisions of that head ; and if placed only under one, might be wholly overlooked, because sought for under a different subdivision ; while if placed under each sub-division into which the subject might have been arranged, it would have swollen the volume unnecessarily. The subjects of Chancery, Criminal Law, Evidence, Executor and Administrator, and perhaps one or two others, I have endeavored appropriately to subdivide ; but the great majority of subjects I have arranged under their respective heads, and. left them without subdivision, my own experience having convinced me that it is the better plan. I submit the book to the profession with two remarks, deprecating criticism. One is, that the distance of the place of publication from my residence, has prevented my reading the proof sheets ; and many errors and im- perfections, which escape observation in the manuscript, strike for the first time when seen in print ; the other is, that the entire work is the production of such moments of leisure from other pursuits as could, in the three months in which it has been compiled, . be bestowed upon it. This latter excuse, in strictness, presents no shield to the shafts of criticism ; as no one is under any obligation to throw a book before the public, until it is perfectly ADVERTISEMENT. VU ready for the public eye. Yet, as I was extremely anx- ious to comply with my prospectus, to present the book to the profession during this spring, and found the labor somewhat greater than I had anticipated, I think the excuse of haste, is not in this case without its weight. W. C. Smedes. VicKSBURG, April 5, 1847. PEEFACE. I HAVE thought it not inappropriate to preface this Digest with a brief exposition of the organization of the judiciary in this State. The whole system was remodelled in the year 1832, when the present Constitution was adopted. The following sections of its fourth article will ex- plain the general features of the present organization ; viz. : " § 1. The judicial power of this State, shall be vested in one High Court of Errors and Appeals, and such other courts of law and equity as are hereafter provided for in this Constitution. " § 2. The High Court of Errors and Appeals shall consist of three judges, any two of whom shall form a quorum. The Legislature shall divide the State into three X PREFACE. districts ; and the qualified electors of each district shall elect one of said judges, for the term of six years. " § 3. The office of one of said judges shall be vacated in two years, and of one in four years, and of one in six years ; — so that at the expiration of every tvpo years one of said judges shall be elected as aforesaid. " § 4. The High Court of Errors and Appeals shall have no jurisdiction, but such as properly belongs to a Court of Errors and Appeals. " § 5. All vacancies that may occur in said court from death, resignation, or removal, shall be filled by election as aforesaid ; provided, however, that if the unexpired term do not exceed one year, the vacancy shall be filled by executive appointment. § 6. Requires the judges to be thirty years of age at the time of their election. § 7. Requires the court to be held twice a year at the seat of government. § 9. Prohibits a judge from sitting in a cause wherein he is interested, and provides for the appointment by the Governor of competent persons, to sit in the room of such disqualified judges. It has been necessary to exercise this power but twice, since the organization of the court. § 10. Provides that the salaries of the judges shall not' be diminished during their continuance in oflice. PKEFACE. XI § 11 - § 15. Provide for the organizfition of th^ Circuit Courts ; in substance that the i circuit judges slnill be elected in their respective districts, for the term of four years and shall reside therein ; the districts to contain not less than three nor more than twelve counties. The jurisdiction of the Circuit Court is original in all matters civil and criminal in this State ; but in civil only when the sum in controversy exceeds fifty dollars. These courts are to be held at least twice a year in each county in the State ; the judges are allowed to interchange cir- cuits ; and are to receive a compensation, not to be di- minished during their continuance in office. §16. Provides that "A separate Superior Court of Chancery shall be established, with full jurisdiction in all matters of equity ; provided, however, the Legislature may give to the Circuit Courts of each county equity jurisdiction in all cases where the value of the thing or amount in controversy, does not exceed five hundred dollars ; also in all cases of divorce and for the fore- closure of mortgages. The Chancellor shall be elect- ed by the qualified electors of the whole State for the term of six years, and shall be at least thirty years old at the time of his election." § 18. Provides that "A Court of Probates shall be established in each county of this State, with jurisdiction XU PREFACE, in all matters testamentary, and of administration, in orphan's business and the allotment of dower ; in cases of idiocy and lunacy and of persons non compos mentis. The judge of said court shall be elected by the quali- fied electors of the respective counties, for the term of two years." § 19. Provides that the clerk of the High Court of Errors and Appeals, shall be appointed by the court for the term of four years ; and the clerks of the Circuit, Probate, and other inferior courts, shall be elected for the term of two years. § 20 and 21. Establish the jurisdiction of a board of police of five members for each county, elected for the term of two years, over roads, highways, ferries, and bridges, and all other matters of county police ; and to order county elections to fill vacancies in county offices. They provide also for the election and qualification of the members. §23. Provides for the election of justices of the peace to be chosen in each county by districts : their juris- diction to be limited to causes in which the principal of the amount in controversy shall not exceed fifty dollars. § 24. Is as follows, viz.: " the Legislature may, from time to time, establish such other inferior courts as may PREFACE. Xlll be deemed necessary ; and abolish the same whenever they shall deem it expedient." The Legislature have at different times exercised the power conferred by this section. In the year 1836 they established " in the counties of Warren, Claiborne, Jef- ferson, Adams and Wilkinson, an inferior court of criminal jurisdiction," by the name of " the Criminal Court." Concurrent jurisdiction with the Circuit Courts of the different counties was given to it, over all crimes, misdemeanors, and offences of whatever nature. The Hon. John I. Guion was the first judge who presided in this court ; he held the office about a year, when he resigned ; and the Hon. J. S. B. Thachee, now one of the judges of the High Court of Errors and Appeals, was elected to fill the vacancy. In the year 1840 this court was abolished by the Legislature. In the year 1842, the Legislature established a Vice- Chancery Court for the District, composed of the coun- ties of Lowndes, Octibbeha, Noxubee, Winston, Kem- per, Chickasaw, Pontotoc, Tippah, Tishemingo, Ita- wamba, Monroe, Lafayette^ Marshall, De Soto, Tunica, Coahoma, Ponola, Yalabusha, Carroll, Holmes, Talla- hatchie, Choctaw, and Neshoba. By the third section of the act, were given to this court " concurrent power and jurisdiction, within said District, with the Superior b XIV PREFACE. Court of Chancery of this State, when the amount in controversy shall not exceed five hundred thousand dollars." The Vice-Chancellor was also, v\?ithin his District, to have like power and authority with the Chancellor of the State, both in term time and vacation ; and all laws in force touching the powers and jurisdiction of the Superior Court of Chancery, or the powers, duties, and authorities of the Chancellor, or in reference to any matter or thing connected therewith, were to apply to the District Chancery Court and Vice-Chancel- lor, unless inconsistent with the act, or inapplicable. An appeal to the Superior Court of Chancery ; or by consent of parties, directly to the High Court of Errors and Appeals ; and a writ of error to the latter court, were also provided. The constitutionality of this act was questioned soon after its passage. It was held by the High Court of Errors and Appeals, in the case of Houston v. Royster, 7 How. 543, to be constitutional. See infra. Title Vice- Chancery Court. The Hon. Joseph W. Chalmers was appointed Vice Chancellor by the Governor, under a provision in the act, until the general election in November, 1843 ; when the Hon. Henry Dickinson was chosen his succes- sor for four years. PREFACE. XV In the year 1846, a similar court for the District, com- posed of the qounties of Jefferson, Adams, Wilkinson, Amite, Franklin, Lawrence, Copiah, Pike, Marion, Han- cock, Harrison, Jackson, Perry, Greene, Wayne, Jones, and Covington, was established. The Hon. James M. Smiley was elected Vice-Chan- cellor of this court on the first Monday of May, 1846, to hold his office until the regular election in November, 1849. The legislature have also exercised this power of creating inferior courts, in the acts of incorporation of cities, and the establishment of city courts therein for. the trial of offences against the ordinances of such cities. In March, 1833, the legislature fixed the criminal and civil jurisdiction of the Circuit Courts, within the limits prescribed by the constitution ; and also provided that they should "have and possess original and concurrent jurisdiction with the Superior Court of Chancery, over all matters, pleas, and plaints whatsover, belonging to, or cognizable in a court of equity, where the value of the thing or amount in controversy does not exceed the value of five hundred dollars ; also in cases of divorce and for the foreclosure of mortgages ; and such process and course of proceedings shall be had herein as in simi- XVI PREFACE. lar cases are commonly had in the Superior Court of Chancery." Previous to the session of the legislature of 1844 the fifty-seven counties, into v\?hich the State is laid off, vs^ere divided into eleven judicial districts, with a judge for each district, for the holding of the circuit courts. By an act of that legislature four of the districts were abolished, by which the number of districts and judges were reduced to seven ; into which the different counties were distributed. By this act the circuit court is held in each county twice in each year. By various acts of the legislature the times of session and other regulations for the High Court of Errors and Appeals have been established. It has, as has been seen, under the constitution no original jurisdiction whatever. It is held twice in each year, in January and November, at the seat of government. This is not, perhaps, the place to speak of the char- acter of this tribunal, as a bench of justice; yet no Mississippian can fail to take pride in the reputation it has conferred upon his State. Its decisions, now gar- nered in fourteen volumes, while they command unlimited respect and confidence at home, are acquiring a fame and character abroad for solid worth and force that are enrolling the names of our distinguished judges with PREFACE. XVll those of this and other countries who have adorned and dignified the profession. Under its present organization, with its illustrious Chief Justice at its head, it is daily dispensing new light upon the legal world, and adding unfading laurels to its own reputation. The Probate Court sits in every county in the State ; in nearly all monthly. The salaries of the judges are dependent, with the exception of a small per diem while court is in session, upon the sums received for services rendered by the judge in the settlement of estates, in examining accounts, &c. It is, even in the richest and most populous counties, but a meagre compensation. The practice in these courts, was for a number of years, for want of any settled rules or forms, very vari- ous and conflicting in the different counties ; and the modes of procedure very irregular and in many instances illegal. It, of consequence, occasioned much business for the High Court of Errors and Appeals. Under the decisions of that body, with the aid of an excellent " Treatise on the Law and Practice of the Probate Courts of Mississippi," comprising a compilation of the Statutes of the State on the subject of the Probate Courts and the peculiar subjects of their jurisdiction, with an Appendix of Forms and Precedents, by Ralph North, Esq. ; b* XVm PREFACE. and of a more recent publication of a more general and scientific character, which has received the highest com- mendation from the profession, entitled " A Digest of the Laws respecting Wills, Executors and Administra- tors, Jurisdiction and Practice of the Courts of Probate and Equity in relation to the Estates of Decedents ; also the Law of Descent, Distribution, Dower, and Guardian and Ward, including the Statutes and Decisions of the High Court of Errors and Appeals of the State of Mis- sissippi ; and the Judicial Decisions of other States of the Union on the same Subjects," by John M. Chilton, Esq., the practice in the Probate Courts is assuming a more consistent and systematic shape, and its decisions are becoming more worthy the important subjects of jurisdiction confided to them. There is still, however, in the estimation of the writer, great room and necessity for improvement, if not for a total reorganization of the Probate system, so that the jurisdiction now exercised by those courts may be divided ; the more difficult and intricate portions to be confided to a fewer number of competent judges, well compensated and selected out of the body of the profes- sion ; while the ordinary matters of administration may still be exercised by the tribunals as at present organized. It is but too apparent that, in the great majority of PREFACE. XIX counties in the State, in many of which there are not more than one or two, and in some of them, no members of the profession, and with no inducements either of fame or emolument offered, it must be almost matter of impossibility to procure suitable persons to whom the exclusive jurisdiction of all matters testamentary, with their train of extremely delicate, complicated, and interesting questions, which have taxed the most learned minds of England and America, and of the other subjects com- mitted to this Court, can be safely, with propriety, or to speak in the spirit of the age, economically entrusted. Decisions on the questions of the trusts growing out of wills, of legacies, in cases of dower, idiocy, &c.,in many of which the law has to be deduced from a careful study of reported cases, can be, if made by men wholly unfa- miliar with the science of law, but little better than guess-work ; and must occasion an endless succession of appeals to a higher and more competent tribunal. It is fortunate for those interested in the estates of dece- dents that Mississippi has such a tribunal. The Superior Court of Chancery, organized under the Constitution, by the legislature of 1833, has been and is a striking evidence of the advantage of a separate sys- tem for the administration, of equity jurisprudence. There are few States in the Union, if any, where the XX PREFACE. Bar are more thoroughly versed in the principles and practice of that noble science. Much neglected and held subsidiary, in other States, to the principles and practice of the common law, it has been permitted in many of them, in a great measure either to be a dead letter, or else is administered in a crude and undigested style, upon imaginary and arbitrary principles of sup- posed conscience and right, often in violation of the settled rules of the science. In this State, elevated to its true position, by the veise provision of our constitu- tion, as a separate and distinct system of jurisprudence, it has been administered in the true spirit and upon the true principles of the science ; and it displays,- in its practical operation, its benign and most advantageous results. The Courts of Chancery in this State have afforded the amplest facility for uncloaking the hidden transactions of fraud ; have controlled within its legiti- mate bounds the jurisdiction of courts of law, and have administered not the wild and visionary views of abstract justice and equity entertained by the man who might chance to preside in the courts, but the settled and established rules and principles of the science, built up like the common law, by the hand of time, out of the material afforded by the judicial wisdom and enlighten- ment of ages. PREFACE. XXI And here I cannot close without paying a passing tribute to one who has stamped the impress of his name upon the judicial fame of Mississippi in this particular branch of the administration of her justice ; and who, though his body is now mingling with the dust, will live in the annals of the State, in the records of her courts, and in the reports of his decisions, while the State shall have a name. It is hardly requisite to add that I allude to the late Chancellor Robert H. BUCKNER. For six years he presided over the Superior Court of Chancery ; and was equally remarked for his dignity, impartiality, industry, and ability. He understood thor- oughly the whole system of equity ; and he administered its pure undeviating principles with a wisdom and judg- ment that would not have done discredit even to the bench on which a Hardwicke, a Thurlow, and an Eldon have presided. His court was the model of decorum and dignity. His judicial opinions, of which it is matter of deep regret that so small a portion have been pre- served to the world, are daily extending the circle of his reputation. They have more than once received the emphatic commmendation of his great prototype on this continent, the distinguished and venerable Chancellor XXU PREFACE. Kent ; and will continue, as they become more exten- sively known, to be the more appreciated. He died young in years but ripe in knowledge and honors. W. C. Smedes. ViCKSBUEG, April 6, 1847. NAMES OF THE JUDGES OF THE SUPREME COURT OF THE STATE OF MISSISSIPPI, From the Organization of the State Government to the pe- riod of the Adoption of the new Constitution ; and whose opinions are reported in Walker's Reports.* Chief Justice Hampton. " " Edward Turner. Judge Isaac R. Nicholson. Harry Cage. POWHATTAN ElLIS. John Taylor. Joshua Child. George Winchester. A. Montgomery. Eli Huston. * On application to the Secretary of State, I found that no records had been kept, of commissions to the different Judges who had presided in the old Supreme Court. It was impossible, therefore, to procure any accurate in- formation from that office, of the period of appointment and duration of office of the respective Judges. From Walker's Reports, which cover the period of fourteen years — &om 1818 to 1832 — I have taken the names of the Judges who delivered the opinions ; they will be found above. JUDGES OF THE HIGH COURT OF ERRORS AND APPEALS OF THE STATE OF MISSISSIPPI, Since its Organization under the Constitution of 1833. (a) Hon. William L. ShaUkey, LL. D. Chief Justice. (b) " CoTESwoRTH P. Smith, Justice. (c) " Daniel W. Wright, (d) " James F. Trotter, (e) " P. RuTiLius R. Pray, (f) " John A. Quitman, (g) " Edward Turner, (h) " Reuben Davis, (i) " Alexander M. Clayton, (j) " Joseph S. B. Thacher, (a) Chief Justice Sharkey was elected by the people, in May, 1833 ; and appointed Chief Justice by the court ; his office under the constitution was vacated in May, 1835 ; and in November of that year, he was reelected by the people, and appointed Chief Justice by the court; in November 1841, he was reelected by the people, without opposition and again appointed Chief Justice by the court; his term of oifice expires in November, 1847. At the earnest solicitation of a most respectable portion of the Bar, practising in the High Court of Errors and Appeals, he has announced himself a candidate for re- election. JUDGES. XXV (b) Mr. Justice Smith was elected in May, 1833 ; his term of office expired by limitation in November, 1837 ; in January, 1840, he was commissioned by the Governor, to fill the vacancy occasioned by the death of Mr. Justice Pray ; and retained the office until the election of Mr. Justice Turner, by the people in February, 1840. (c) Mr. Justice Wright was elected in May, 1833, for six years ; he resigned his office in 183S; and has since died. (d) Mr. Justice Trotter was commissioned- in December, 1838, to fill the un- expired term of Mr. Justice Wright. In November, 1839, he was elected by the people for six years, but resigned his office in 1842. (c) Mr. Justice Pray was elected at the regular election in November, 1837, for six years ; he died in the year 1839. (/) Gen. Quitman was commissioned by the Governor, on the 8th of Jan- uary, 1840, to fill the unexpired term of Mr. Justice Pray. He declined accept- ing the office. (g) Mr. Justice Turner was elected by the people at a special election in February, 1840, to fill the vacancy occasioned by the death of Mr. Justice Pray ; his term of office expired in November, 1843. He was not a candidate for reelection. (A) Mr. Justice Davis was commissioned by the Governor in April, 1842, to supply the vacancy,- occasioned by the resignation of Mr. Justice Trotter. He held the office until an election by the people in August, 1842. (t) Mr. Justice Clayton was elected by the people in August, 1842, at a special election, to fill the vacancy occasioned by Judge Trotter's resignation; Judge Trotter's term expired in November, 1845 ; when Judge Clayton was again a candidate, and was reelected for six years from that period. (j ) Mr. Justice Thacher was elected by the people in November, 1843 ; his term expires in November, 184D. CHANCELLORS THE STATE OF MISSISSIPPI. Hon. Joshua G. Clarke, from 1821-1827. " John A. Quitman, " 1827-1835. " Edward Turner, " 1835-1839. " Robert H. Buckner, " 1839-1845. " Stephen Cocke, " 1845-1851. VICE-CHANCELLORS OF THE STATE. Hon. Joseph W. Chalmers. " Henry Dickinson. •' James M. Smiley. - ATTORNEY-GENERALS OF THE STATE OF MISSISSIPPI, SINCE THE YEAR 1833. Mathew D. PattoNj Esq. Thomas F. Collins, Esq, John D. Freeman, Esq. RULES OF THE HIGH COURT OF ERRORS AND APPEALS, OF THE STATE OF MISSISSIPPI, ADOPTED AT THE JANUARY TERM, 1838. RULE L Whenever a cause is brought into this Court from any Circuit or Probate Court, the plaintiff in error, or appel- lant, shall assign errors within the two first days of the term, to which the same is returnable ; and on a failure to do so, a non pros, may be entered ; and the defendant in error, or appellee, shall plead thereto within the two succeeding days, unless it be necessary for defendant to enter a motion before issue made up. RULE IL If the defendant in error, or appellee, join in error, it shall be considered a waiver of want of proper service and return of citation and writ of error. XXVUI RULES OF COURT. RULE III. If the plaintiff in error fail to file a copy of the record within the time prescribed by law, the cause may be dis- tnissed, on producing to the Court a copy of the citation served. And if any appellant fail to file a copy of the record, within the time required by law, the appellee may have the same dismissed, on presenting and filing a copy of the record, or a certificate from the clerk of the Court in which the appeal was taken, under the seal of said Court, showing that the appeal was taken. RULE lY. No record or other paper shall be considered as filed until so marked by the clerk, writs of error and citations excepted, and the clerk shall indorse the date of filing. RULE V. - Before any cause can be heard, the counsel shall fur I'nish the Court with an abstract of the record, printed, or written in a plain legible hand ; and the counsel on each side shall also furnish a brief, printed, or written as aforesaid, containing the points and authorities relied on ; and no counsel shall be heard unless the foregoing requi- sites be complied with. And in no case will the Court receive a brief, after a case has been argued. RULES OF COURT* XXIX RULE VI. U a record be imperfect, and either party wish to have it corrected, diminution may be suggested, and certiorari awarded : Provided, it be done in the first week of the term ; but, in no case shall diminution be suggested af- ter assignment of errors, and nuUo est erratum pleaded unless the Court may order it for information. RULE vn. In all appeals from the Superior Court of Chancery, counsel must prepare abstracts and briefs, as in other cases, subject to the same restrictions. RULE VIIL The first, and fourth, and last Saturdays of each term will be set apart for the examination of applicants for license, and no other days be appropriated for that pur- pose. RULE IX, Every Saturday shall te motion day ; and if counsel be not present at the calling of the motion docket, their mo- tions shall be dismissed ; and no motion, once dismissed, shall be again heard. XXX RULES OF COURT. RULE X. Only two counsel can be allowed to argue a case on the same side, unless by special leave of the Court. RULE XL No re-argument will be granted, unless the party de- siring the same shall petition the Court for that purpose, which petition must be signed by, at least, three members of the Bar ; and it shall be discretionary with the Court whether such re-argument be allowed or not ; and all applications for re-argument shall be made within four days after the decision, and not afterwards. RULE XIL On a showing, predicated on affidavit, any counsel may be required to produce his authority, or show satisfactory evidence thereof, for prosecuting or defending any cause in this Court ; and on failing to produce such authority, or furnish evidence, the cause may be dismissed. RULE XIIL No agreement between counsel will be regarded, un- less reduced to writing and signed by them, or entered of record. RULES OF COUET. XXXI RULE XIV. No motion will be heard unless the reasons in support of it are filed with the papers on at least a half sheet of paper. RULE XV. No cause that has been dismissed shall be reinstated, unless it be on affidavit, setting out probable error in thfe proceedings'. RULE XVL A cause which has been set for a particular day shall not be re-set ; and no cause can be submitted, or set, before it is reached on the docket. RULE XVIL At each term of the Court, the docket will be taken up and the causes disposed of in their order, unless it be suggested in writing to the Court, that certain causes have been brought up for delay ; and if the Court shall be satisfied of the truth of such suggestion, the Court will take up such causes first, and make proper disposition of them. " "** XXXIl P.ULES OF COURT. RULE XVIII. No motion will be heard unless it has been entered on the docket one entire day before it is called. RULE XIX. When a motion is made to dismiss, and the counsel either withdraws the motion, or suffers it to be dismissed, for want of prosecution, it shall be considereci as a wai- ver of the defect, on which the motion was predicated; and such defect will not be noticed by the Court, unless it be so material that no judgment can be given. RULE XX. - All assignment of errors shall be made on at least a half sheet of paper ; aiid no assignment will be noticed which is made on the paper on which the record is made out. RULE XXI. No joinder in error shall be withdrawn for any other purpose than allowing the party to plead in bar to the writ of error. RULES OF COURT. XXXIU RULE XXII. Whenever a party shall rely on an excess in the cal- culation of interest, or damages, for a reason for revers- ing the judgment, a true calculation shall be presented to the Court, in writing and figures, M'iih a certificate by some counsellor not interested in the cause, that the calculation is correct, and no such error will be noticed unless so presented to the Court. RULE XXIII. All process returnable to this Court shall bear test in the name of the presiding judge. RULE XXIV. No cause shall be submitted w:ithout argument, unless by approbation of the Court. RULE XXV. In all appeals from the judgment of any Circuit Court, the securities must be approved by the Court, and the bond must be executed during the term at which such appeal v(r as prayed. RULE XXVI. In appeals from Chancery, the rules of practice in that Court shall be adopted as the rules of this Court, so far as they can be made applicable. XXXIV RULES or COURT. ADDITIONAL RULES Adopted January Term, 1840. S RULE XXVII. Hereafter when any cause is reached on the docket, if no counsel appear on either side, or when no counsel be marked on the docket, the cause shall be dismissed. Provided, however, that" such dismissal, may be set aside on good cause shown, supported by affidavit ; but in no case shall such dismissal be set aside unless the affidavit also show that there are probable merits. RULE XXVIII. When any defendant in error shall be dissatisfied with the security taken in any writ of error bond, he may move the Court for a rule upon the plaintiff in error to show cause on a day to be named, why the supersedeas should not be discharged or other security given ; a copy of which rule shall be served on the plaintiff in error, at least five days before the expiration of the same. The motion for the rule must be founded upon an affida- vit of the insiifficiency of the security taken ; and the affidavit of a person interested in the judgment below may be read in support of the application. If the Court RULES OF COURT. XXXV is satisfied from the affidavit, that there is cause to inter- pose, the rule will be entered. On showing cause, affi- davits taken by either party may be read to show the sufficiency or msufficiency of the security taken ; pro- vided reasonable notice be given of the taking of the same. 'The affidavit of the security may be taken. If the security is adjudged insufficient, the additional secu- rity must be approved by the Court. RULE XXIX. When a re-argument is ordered, the re-argument shall be had at the same term at which it is granted ; the cause to be placed at the end of the docket of the dis- trict to which it belongs. RULE XXX. Adopted July Term, 1840. When a plaintiff in error shall file a record duly cer- tified before a writ of error issues, or where a writ of error may have been set aside as defective, and a new writ issues, it shall not be necessary to send said writ of error to the clerk of the inferior Court ; but the writ shall be made out and filed by the clerk of this Court with the Said record, which record shall be taken and considered as a due return to said writ. XXXVl KTJLES OF COURT. ADDITIONAL RULES. RULE XXXI. Hereafter when any cause is reached on the docket, if the papers or record be out of the office, then the party or counsel may take such judgment against the party who took or has such papers or record as he may think proper ; or the Court may, at its discretion dismiss said cause or continue it. RULE XXXII, Adopted November Term, 1844. The briefs of the members of the Bar designed for publication in the reports of the decisions of this Court, shall hereafter not exceed five foolscap pages in length, unless in cases specially exempted by the Court. Members of the Bar, however, who desire to argue their cases in writing, at greater length, can do so, upon preparing a synopsis of their arguments of the required character for the reporters ; p-ovided, that all briefs may be abridged at the discretion of the Court, if, in their opinion, a brief five pages in length is unnecessary. TABLE OF CASES Abbey v. Van Campen, Freem. Ch. 273. Abbott V. Haclcman, 2 S. & M. 510. Adams v. Griffin, 3 S. & M. 556. V. Munson, 3 How. 77. (Rowan >».) 1 S. & M. Ch. 45. (Speight V.) Freem. Ch. 318. (Thompson v.) Freem. Ch. 225. Addison v. Eldridge, 1 S. & M. 510. AgricuUnral Bank (AUein v.) 3 S. & M.48. V. Commercial Bank of Manchester, 7 S. & M. 592. — V. Dorsey, Freem. Ch. 338. M. 463. & M. 307. Ch. 105. M. 726. - V. Harris, 2 S. & - (Harrison v.) 2 S. ■ (M'Intyre v.) Freem. - (Moss V.) 4 S. & (Pallen v.) Freem. Ch. 419. Allies (Tillman v.) 5 S. & M. 373. Ainswonh v. The State, 5 How. 242. Alexander (Catlett».)4How. 404. (Madison County Court v.) Walk. 523. 1'. Smith, 4 S. & M. 258. AUbrilarn (Kent v.) 4 How. 317. Allein v. Agricultural Bank, 3 S. & M. 48.A ' Allen (FiSheTi'.) 2 How. 611. V. Hnpson, -Freem. Ch. 376. Allnutt (Amos & Roe v.) 2 S. & M. 215. Alston (Foster v.) 6 How. 406. V. Foster, Freem. Ch. 739. Alvis (Nations v.) 5 S. & M. 338. American Col. Society v. Wade, 4 S. & M. 670. (Wadew.)7S. & M. 663. American Life Ins. Co. v. Emerson, 4 S. & M. 177. (Wood W.J 7 How. 609. Amos & Roe v. Allnutt, 2 S. & M. 215. Anderson (Berry v.) 2 How. 649. — v., Burke, 6 S. & M. 475. — '■ V. Burnett, 5 How. 165. V. Carlisle & White, 7 How. 408. 630. - (Clarke v.) 2 How. 852. - (Delafield b.) 7 S. & M. ■ (Girault «.) Walk. 30. ■ (Gaodwin v.) 5 S. & M. 730. -(Hillt)0 5S.&M. 216. & Orne v. Lewis & Nilee, Freem. Ch. 178 V. Lincoln, 5 How. 279. V. Miller, 7 S. & M. 585. — (Moore v.) 3 S. & M. 321. (The State v.) 3 S. & M 751. V. Tarpley, 6 S. & M. 507. V. Tyson, 6 S. & M. 244. & Douglass u. Walton, Freem. Ch. 347. V. Wanzer, 5 How. 587. Andrews v. Doe ex dem. Wilkes, 6 How. 54.4. TABLE OF CASES. Andrews v. Planters Bank, 7 S. & M. 192. (Pope i>.) 1 S & M. Ch. 135. V. Washburn, 3 S. & M. 109. Archer (Harper v.) 4 S. & M. 99. & Watson V. Stamps, 4 S. & M. 352. Arnifield v, Arnifield,Freem. Ch. 311. Armstrong (Doss v.) 6 How. 258. (Pope V.) 3 S. & M. 214. Arnett v. Bitsell, Walk. 496. V. Evans, Walk. 471. Arnold & Pinckard v. Hamer, Freem. Ch. 509. Atchison v. Potter, 6 S. & M. 120. Atherton (Commercial and Railroad Bank of Vicksburg v.) 1 S. & M. 641. Atkinson, v. Fortinberry, 7 S. & M. 302. Ankalell v. Torrey,7 S. & M. 467. Austin & Co. V. Feamsler, 1 S. & M. 166. (Fowler v.) 1 How. 156. (Leonard v.) 2 How. 888. Ayer v. Bailey, 5 How. 688. Avres v. Mitchell, 3 S. & M. 683. -^ (Moore v.) 5 S. & M. 310. B. Babcock, Gardner & Co. v. Seott & Robinson, 1 How. 100. Bacon v. Conn, IS. & M. Ch. 348. Bailey (Buckingham u.) 4 S. & M. 638. V. Gaskins, 6 How. 519. Baine (Hines v.) 1 S. & M. Ch. 530. Baines v. McGee, 1 S. & M. 208. Baker (Kerr v.) Walk. 140. Baker & Vardeman v. Byrne, Herman & Co. 2 S. & M. 193. Ballard (Bank of Louisiana v.) 7 How. 371. (Miss. & Alab. Railroad Co. v.) 5S. &M. 606. Balfour (Caradine v.) Walk. 532. (Harrison v.) 5 S. & M. 301. Balton (Harris v.) 7 How' 129. . Baldwin (Payne v.) 3 S. & M. 661. Bank of Alabama (Hemphill v.y 6 S. &M.44. . (Wright V.) 6 S. & M. 251. ' Banks V. Cage & Stevens,, 1 How. 293. (Robertson v.) 1 S. & M. 666. Bank of Grenada (Trible v.) 2 S. & M. 523. Bank of Lexington w. Taylor 2 S. & M. 27. Bank of Mississippi v. Catlett's E?'rs. 6 How. 175. Bank of Mississippi (Stovall u.) 5 S. • & M. 17. ». Wren, 3 S. & 4S. &M. 431. M. 791. Bank of Port Gibson (Nevitt v.) 6 S. & M. 513. (Nevittj).) Freem. Ch. 438. (Officers of Ct.K.) (State «.) 4 S. & M. 439. Bank of Pennsylvania (Carmiehael v.) 4 How. 567. Bank, Planters v. Scott, 5 How. 246. Bank of U. S. «. Pat.ton, 5 How. 200-. Bank of Vicksburg v. Jennings, 5 How. 425. Barlow (Black v.) 6 S. & M. 239. V. Esterling, Walk. 302. V. Planters Bank, 7 How. 129. Barnes (Grand Gulf Bank D.) 2 S. & M-. 165. V. Loyd, 1 How. 585. (McPherson v.) Walk. 374. V. Moody, 5 How. 636. (Sprawles v.) 1 S. & M. 629. Barfield v. Impson, 1 S. & M. 326. V. Kearney, Walk. 604. Barker (Wanzer v.) 4 How^63. V. Wanzer, 5 How. W6.. V. Planters Bank, 5 How. 565. (Stacy V.) 1 S. & M. Ch. 112. TABLE OF CASES. Barland (Ross».) Walk. 489. Blrnard v. Planters Bank, 4 How. 98. Barnes's ex'rs v. Reynolds, 4 How. 114. Barringer v. Nesbit, 1 STfe M. 22. Barrow v. Barrow, 1 S. & M. Ch. 101. u. Wade, 7 S. & M. 49. Barton (Black v.) 6 S. & M. 239. Bales V. Bates, Walk. 356, 401. (Gayden v.) Walk. 209. Banghan & Morton v. Graham, 1 How. 220. Bay (Cook's heivs & creditors v.) 4 How. 485. Baynton v. Finnall 4 S. & M. 193. Bayless v. Orne & Bybee, rreem. Ch. 161. Beall V. Campbell, 1 How. 24. Beasley(Crismanj).)l S. &M.Ch.561. Bealty v. Harkey, 2 S. & M. 563. -^ V. Smith, 2 S. & M. 567. Bean (Roberts «.) 5 S. & M. 590. Beard (Johnston v.) 7 S. & M. 214. Beauchamp v. Hayne, 5 S. & M. 515. Beazley (Patrick v.) 6 How. 609. Beck V. Montgomery, Guardian, &c., 7 How. 39. Been v. Lindsey, 2 ?. & M. 581. Behaley v. Hatch, Walk. 369. Bell V. Henderson, 6 How. 311. (Merrill v.) 6 S. & M. 730. V. Suddeth, 2 S. & M. 533. V. Tombigbee Railroad Co. 4 S. & M. 549. - — (Tombigbee Railroad Co. v.) 4S. & M. C85. Benbrook (Fletchers.) 5 S. &M. 619. Bennett M.McGaughy, 3 How. 192. (Marsh v.) 6 How. 215. (Prewitt V.) 7 S. & M. 101. (SafFaracas v.) 6 How. 277. BenoitK. Brill, 7 S. & M. 33. Benton & Manchester Railroad & Banking Co. (Reed v.) 4,How. 257. Benton & Manchester Railroad & Banking Co. (Robson v.) 7 S. & M. 724. Benton v. Crowder, 7 S. & M. 185. Berry v. Anderson, 2 How. 649. (Bland V.) 7 S. & M. 77. V. Hale, 1 How. 315. V. Parkes, 3 S. & M. 625. (Smith V.) 1 S. & M. 321. Berthe v. Biggs, 1 How. 195. Bernard (Caillaret v.) 7 S. M. 316. Bibb U.Jones, 7 How. 397. Bien v. Weatherspoon, 1 How. 28. Bierne (House v.] 5 S. & M. 622. Biggs (Berthe v.) 1 How. 195. Bigham v. Merritt, Walk. 420. Biles (Hardaway & Boyakin v.) 1 S. & M. 657. Billing'sley (Choate «.) Walk. 256. Bingaman (Hoggattu.) 7 How. 565. V. Hyatt, 1 S. & M. Ch. 437. • (McAnulty v.) 6 How. 382. V. Phillips, 1 How. 385. Bingham v.. Sessions, 6 S. & M. 13. Binney v. Turner, Walk. 496. Bird w.McLaurin, 4 S. & M. 50. Bitsell, (Arnett v.) Walk. 430. Bixler (Harrel v.) Walk. 369. (Wright t;.) Walk. 176. Black V. Barton, 6 S. & M. 239. (Davis V.) 5 S. & M. 226. & Pratt, V. McMurtry, Walk. 389. Blackurll v. Davis, 2 How. 812. Blanchardr. Buckholt's adm'r. Walk. 64. Bland v. Commercial & Railroad Bank of Vicksburg, 3 S. & M. 250. Bland's adm'rs & heirs (Gowing v.) 2 How. 813. Blanton v. King, 2 How. 856. Blassdale & Grubbs (Johnson v.) I S. &, M. 17. Bledsoe v. Little, 4 How. 13. Blennerhasset (the State v.) Walk. 7. Blewitt (Vaughn v.) 5 How. 418. Board of Police of Yazoo County (Carraway v.) 1 How. 21. Bodley (Jenkins v.) 1 S. & M. Ch. 338. D. Scarborough, 5 How. 729. Bogard V. Gardley, 4 S. & M. 312. Bohanan v. Hough, Walk. 461. D. Walcott, 1 How. 336. * Bohr V. Steamboat Baton Rouge, 7 S. &M. 715. Boisgerard v. Wall. 1 S. & M, Ch. 404. Bolls V. Duncan, Walk. 161. Bonaffe v. Tinner, 6 S. & M. 212. Bondurant (Harper v.) 7 S. & M. 397. Bone V. McGinley, 7 How. 671, TABLE OF CASES. Booth, Edwards & Hunt (Hunt & Tucker v.) Freem. Ch. 215. V. Watson, 5 S. & M. 295. Borders, (Gilmore v.) 2 How. 824. Bostic (Harvey v.) 1 How. 106. Bourne (Keithley & Fisdale v.) 2 How. 683. Bonsh V. Smith, 2 S. & M. 527. Bowen (Offutt v.) Walk. 545. Bowers (Mahon v.) 1 How. 275. (Zecharie & Kerr v.) 1 S. & M. 584. (Zecharie v.) 3 S. & M. 641. Bowie V. Hagan, 5 How. 13. Bowman (Hood v.) Freem. Ch. 290. Boxurll V. Covington, 7 How. 322. Boyett (Burney v.) 1 How. 39. Boyd (Dowell v.) 3 S. & M. 592. Bracey (Stamps & Moore v.) I How. 312. Bradley (Doe ».) 6 S. & M. 485. . V. Pigott, Walk. 348. V. State, Walk. 156. (Smith V.) 6 S. & M. 179. Bradford's ex'r (Herrington v.) Walk. 520. Brandon (Davis v.) 1 How. 150. (Green v.) Walk. 372. (Kerr v.) 2 How. 910. Brazealle (Hinds v.) 2 How. 836. Breekenridge v. Mellon, 1 How. 273. Breeden (Harrison ».) 7 How. 670. Breed (Sampson v.) Walk. 267. Brewer v. Harris 2 S. & M. 84. Brewster (Demoss v.) 4 S. & M. 661. Brewster, Solomon & Co. (Vanvac- ieiv.) IS. & M. 400. Brian (Buck v.) 2 How. 874. V. Williamson, 7 How. 14. Briggs V. Clark, 7 How. 457. V. Hill, 6 How. 362. (Newell V.) 3 How. 45. ' (Steen v.) 3 S. & M. 326. Briggs, La Coste& Co. (Gridley v.) a How. 830. V. Planters Bank, Freem. Ch. 574. Bright V. Rowland, 3 How. 398. Brill (Benoit v.) 7 S. & M. 32. Briscoe (Chaplain v.) 5 S. & M. 198. (Holp V.) Walk. 19. V. Planters Bank, 3 S, & M. 423. Briscoe' -o. Thompson, Freem. Ch. 155. Broadus (Martin v.) Freem. Ch. 35. Brock V. tiuckett's ex'r 4 How. 459. (Speight's ex'r v.) Freem. Ch. 389. Brooks V. Lewis, 1 How. 207. (Miller v.) 4 S. & M. 175. (Stone V.) 6 How. 373. V. Whitson, 7 S. & M. 513. Browder's adm'rs (Carmichael v.) i How. 431. (Hall V.) 4 How. 224. Browder (Carmichael v.) 3 How. 252. — (Shrock V.) 4 How. 426. Brower (Bozman v.) 6 How. 43. Brown, Meeks & Flournoy (Osgood & Co, V.) Freem. Ch. 392. Brown (Bozman v.) 6 How. 349. (Coffman v.) 7 S. & M. 125. (Campbell w.) 6 How. 106. V. Doe ex dem the heirs of Weast, 7 How. 181. V. Dillahunty, 4 S. & M. 713. . Ex parte, 1 How. 303. • (Lakeu.) 7 How. 66 1. ■ V. Oldham, Walk. 493. . «. Phipps, 6 S. & M. 51. - (Stamps B.) Walk. 526. • V. Smith, 5 How. 387. . V. Steel's ex'r Walk. 179. (Turner v.) 3 S. & M. 425. Brown's ex'r (Chaplain v.) 7 How. 636. Brunson v. Lea, 5 S. & M. 149. Bryant v. State, 1 How. 351. Bucki). Brian, 2 How. 874. Buckels (Suzett«.) 7 How. 663. Buckholt's adm'r (Blanchard«.) Walk. 64. Buckingham r;. Bailey, 4 S. &M. 538. (Hughes V.) 5 S. & M. 632. V. Owen, 6 S. & M. 502. Buckles V. Cunningham, 6 S. & M. 358. Buckner (Hendley v.) 6 S. & M. 70. (Natchez Ins. Co. v.) 4 How. 63. Budlong (Kellogg v.) 7 How. 340. TABLE OF CASES. Bull V. Harrell, 7 How. 9. Bullard (CraftD.) 1 S. & M. Ch. 366. (Dorsey v.) 7 S. & M. 9. Bullitt V. Thatcher, 5 How. 689. Bumpass (Young v.) Freem. Ch. 241 Burke (Anderson v.) 6 S. & M. 475. (Flournoy v.) 4 How. 337. (Yeizeru.) 3 S. & M. 439. Burk V. Gray, 6 How. 527. Burnett (Dunlap v.) 5 S. & M. 702. Burney v. Boyett, 1 How. 39. (Houstin V.) 2 S. & M. 583. Burnham v. Huffman, Walk. 331. (Reeves v.) 3 How. 26. Burns v. Stanton, 2 S. & M. 457. Burrns (Kane v.) 2 S. & M. 313. Burton (McNiel v.) 1 How. 510. Bush (State v.) Walk. 265. (Steger v.) I S. & M. Ch. 172. Bush (Stamps v.) 7 How. 255. Butler V. Jones, 7 How. 587. (Rankin u.) 2 S. & M. 473. V. Stevens, Walk. 219. Buttell (Dye's adm'r v.) 7 How. 224. Byrd v. Gibson, 1 How. 568. V. Holloway, 6 S. & M. 199. ) V. Holloway, 6 S. & M. 323. j V. State, 1 How. 163, 247. Byrne v. Herman & Co. 2 S. & M. 193. (Vaideman v.) 7 How. 365. c. Cabel, (Hackler's heirs v.) Walk. 91. Cable V. Martin & Bell, 1 How. 558. Cade, (Whitehead v.) Walk. 95. Cage & Stevens (Banks v.) 1 How. 293. V. Her, 5 S. & M. 410. (Reed v.) 4 How. 253. V. Wilkinson, 3 S. & M. 223. (Woolfolk V.) Walk. 300. Caillaret v. Bernard, 7 S. & M. 316. Cain, (Witherspoon v.) Walk. 407. Calching (Devane v.) 2 How. 884. Caldwell (Moore v.) Freem. Ch. 222. . (Ragsdale v.) 2 How. 930. Calhoun (Harper v.) 7 How. 203. (Matlock V.) 3 How. 70. Callender v. McCreary, 4 How. 356. (Rollins V.) Freem. Ch. 295. Calmes v. Ford, 6 S. & M. 190. (Kyle & Williams v.) 1 How. 121. Calvert (Chew v.) Walk. 54. Calvin & Hurst (Hill & Henderson v.) 4 How. 231. Calvit's ex'r v. Markham, 3 How. 343. Calvit (Kerr v.) 4 How. 115. (Planters Bank v.) 3 S. & M. 143. ■(Scott«.)3How. 148. Cameron (Planters Bank v.) 3 S. & M. 609. 1* Cameron v. Wilson, Walk. 500. Camp (Texada v.) Walk. 150. Campbell (Beall v.) 1 How. 24. V. Brown, 6 How. 106. V. Brown, 6 How. 230. (Foute?).)7How. 377. Mississippi Union Bank, 6' How. 107. 625. - (Sandford v.) 7 S. & -V. Young, 3 How. 301. M. Canavan, (Carprewi).)4 How. 370. Camion v. Kinney, 1 S. & M. Ch. 555. Carbry (Powell a.) 4 S. & M. 86. (Yalabusha County v.) 3 S. & M. 529. Carl (Reed v.) 3 S. & M. 74. Carleton v. Osgood, 6 How. 285. Carlisle & White (Anderson v.) 7 How. 408. Carman '(Gilmore v.) 1 S. & M. 279. ■ V. Watson & Pope, 1 How. 333. Carmichael v. Bank of Pennsylvania, 4 How. 567. V. Browder's adm'rs, 4 How. 431. ' 11. Browder, 3 How. 252. V. Davis, Walk. 221. V. Foley, 1 How. 591. V. Hunter, 4 How. 308. TABLE OF CASES. Carmichael v. The Governor, 3 How. 236. — V. Trustees of School Fund, 3 How. 84. V. West Feliciana Railroad Co. 2 How. 817. Oarnes v. Hubbard, 2 S. & M. 108. ' Carpenter (Cartwrightw.) 7 How. 328. V. State, 4 How. 163. Garpren v. Canaran, 4 How. 370. Carr (Coleman's lessee v.) Walk. 258. Carradine v. Collins, 7 S. & M. 428. V. Garner, Walk. 518. Carraway v. Board of Police of Yazoo County, I How. 21. V. McNiece, Walk. 538. Carroll (Cohen v.) 6 S. & M.545. V. Renich, 7 S. & M. 798. Carson v. Flowers 7 S. & M. 99. V. Huntington, 6 S. & M. 111. (Moore v.) 1 How. 53. Carter v. Graves, 6 How. 9. V. Judge of Probate Court of Adams County, 2 S. & M. 42. V. Spencer, 4 How. 42. V. Saunders, 2 How. 851. ■ V. Taylor, 6 S. & M. 367. Cartwright v. Carpenter, 6 S. & M. 328. Caruthers' (McGehee v.) 2 S. & M. 443. (Prewett v.) 7 How. 304. V. Wilson, 1 S. & M. 527. Catlett V. Alexander, 4 How. 404. Chace v. East, Walk. 439. (State V.) Walk. 384. Chambliss (Hunt v.) 7 S. & M. 532. (Shanks v.) Walk. 249. Chance v. Right, Walk. 156.' Chaney (Phillips v.) 7 How. 250. Chaplain v. Briscoe, 5 S. & M. 198. Chew V. Calvert, Walk. 54. & Relf B. Randolph, Walk. 1. Chewing v. Cox, 1 How. 132. • Chewning v. Gatewood, 5 How. 552. 1). Nichols, 1 S. & M. Ch. 122. V. Peck, 6 How. 524. Chichester & Van Wych v. Daggett, 2 How. 863. Chilton V. Cox, 7 S. & M. 791. Chisholr|i (Commercial Bank of Man- chester «.) 6 S. &M. 457. Choat V. Billingsley, Walk. 420. Christmas (Nobles »i.) 2 How. 885. 355. City of Natchez (Minor v.) 4 S. & M. 602. V. Trimble & Forsyth, Walk. 376. City of Vicksburg (Harrison v.) 3 S. &M. 581. Claiborne i'. Planters Bank, 2 How. 727. ■ (Williams «.)lS.&M.Ch. (Williams v.) 7 S. & M. 488. Clapp V. Mandeville, 5 How. 197. Clark V. Anderson, 2 How. 852. (Briggs V.) 7 How. 457. & Co. V. Kingsland, 1 S. & M. 248. (Murphy v.) 1 S. & M. 221. V. Perry & Fox, 4 How. 285. V. Ratcliff, 7 How. 162. Clarke (McLaughlin v.) Freem. Ch. 385. Clow V. Tharpe, 3 S. & M. 64. Cobb & M'Castle v. O'Neal, 1 How. 581. Cock V. Weathersby 5 S. & M. 333. Cocke V. Lane, 3 S. & M. 763. Cocks (Penrice v.) 1 How. 227. Cody V. The State, 3 How. 27. doffman v. Brown, 7 S. & M. 135. V. Davanay, 2 How. 854. Coheau. Commissioners Sinking Fund, 7 S. & M. 437. V. Hunt, 2 S. & M. 227. (Smith V.) 3 How. 35. Cohen v. Carroll, 5 S. & M. 545. Cole's Heirs (Winn v.) Walk. 119. Coleman's lessees v. Carr, Walk. 258. Coleman v. Doe, 4 S. & M. 40. (Leftwich v.) 3 How. 167. V. Mississippi & Alabama Rail- road Co. 5 How. 419. V. Rowe, 4 S. & M. 747. V. Rowe, 5 How. 46.0. V. Saunders, 5 How. 287. V. Tidwell, 5 How. 12. Collier (Skinner v.) 4 How. 396. Collins (Carradine v.) 7 S. & M. 428. (Foster ».) 5 S. & M. 259. V. Flowers, 1 How. 26. (Garner v.) Walk. 518. V. McCargo, 6 S. & M. 128. V. Money, 4 How. 11. V. Spears, Walk. 310. V. Terrall, 2 S. & M. 383. TABLE OF CASES. Collins (Winchester v.) 435. Columbus, Town of (Hand v.) 4 S. & M. 203. Comfort, (Whittaker i).)Walk. 421. Com. Bank of Columbus (Loomis v.) 4 How. 660. V. Thompson, 7S. &M. 443. Com. Bank of Manchester (Agricul- tural Bank v.) 7 S. & M. 592. ■ — V. Chisholm, 6 S. & M. 457. — '■ r. Coroner of Yazoo County, 6 How, 530. — V. Galloway, 6 How. 515. How. 508. S. &M. 636. 4S. &M. 439. S. &M. 41. S. & M. 24. ■ V. Nolan, 7 (Phillips 0.) 1 • V. The State, V. The State, 6S.&M.218. Com. Bank of Natchez v. Claiborne, 5 How. 301. (Ellis's adm.^.) 7 How. 294. - (Maury v.) 5 ■ (Paine v.) 6 ■V. The State, ■ (Tierman v.) (Wilkins v.) 6 How. 217. Com. & Railroad Bank v. Heldeburn, 6 How. 3S6. Com. & Railroad Bank of Vicksburg V. Atherton, 1 S. & M. 641. Com. & Railroad Bank of Vicksburg (Blandw.)3S.&M. 250. Com. & Railroad Bank of Vicksburg V. Hamer, 7 How. 448. Com. & Railroad Bank of Vicksburg I). Lum, 7How. 414. Com. Bank of Rodney (Montgom- ery V.) 1 S. & M. Ch. 632. (Smith V.) 6 S. & M.83. as. &M.599. 7 How. 648. — V. The State, 4 S. & M. 439. Commissioners (State v.) Walk. 368. Commissioners of the Sinking Fund (Cohea v.) 7 S. & M. 437. Commissioners of the Sinking Fund (FallD.)3S. &M. 137. Commissioners of the Sinking Fund (Lynch v.) 4 HovV. 377. Commissioners of the Sinking Fund V. Patrick,^l S. & M. Ch. 110. Commissioners of the Sinking Fund V. Walker, 6 How. 143. Commissioners of the Sinking Fund (Walker v.) 1 S. & M. 372. Compton u. Compton, 6 S. & M. 194. — (Dougherty «.) 3 S. & M. 100. Comstock V. Rayford, 1 S. & M. 423. Conger v. Robertson, Freem. Ch. 265. V. Robinson, 4 S. & M. 210. Conley (Pearl v.) 7 S. & M. 356. Conn (Bacon v.) 1 S. & M. Ch. 348. -v. Pender, 1 S. & M. 386. Connell (Elliott v.) 5 S. & M. 91. v. Lewis, Walk. 251. V. Singleton, Walk. 251. (Vance v.) Walk. 254. V. Woodard, 5 How. 665. Conner (Pharris v.) 3 S. & M.) 87. V. Routh, 7 How. 176. Cook's heirs & creditors v. Bay, 4 How. 485. Cook (Dillon v.) 5 S. & M. 773. V. Fisk, Walk. 423. V. Martin, 5 S. & M. 379. (McDowell V.) 6 S. & M. 420. (Torrey w.) 3 S. &-M. 60. V. Vick & Pinckard, 2 How. 882. (West V.) 7 How. 357. Cooley (Leach v.) 6 S. & M. 93. Coon (Jones v.) 5 S. & M. 751. Cooper (Hamilton v.) Walk. 542. (HoUiday v.) 1 S. & M. 633. (King «.) Walk. 359. Copeland v. Mears, 2 S. & M. 519. V. Pate, 6 How. 275. Ch. Copes V. Fultz, 1 S. & M. 623. Cord (Vannersori v.) 1 S. & M 345. Cornell v. Rulon, 3 How. 54. Coroner of Yazoo County (Com. Bank of Manchester v.) 6 How. 530. Cothram (Ransom «.) 6 S. & M. 167. Cotton V. Goodson, 1 How. 295. V. Parker, 1 S. & M. Ch. 125, 191. Coulson (Planters Bank, v.) 6 How 395. TABLE OF CASES. Courtney (Planters Bank v.) 1 S. & M. Ch. 40. ■ V. Smiley, Walk. 497. Cousins (Howard v.) 7 How. 114. Covington (Boxwell v.) 7 How. 323. Cowan (Payne v.)' 1 S. & M. Ch. 26. Cowden v. Dobyns, 5 S. & M. 83. Cowder v. Cowder, 2 How. 806. Cowen V. Boyce, 5 How. 769. Cox (Chewing v.) 1 How. 132. (Chilton V.) 7 S. & M.791. V. Wadlington, 3 How. 57. Cozzens (Wheelock v.) 6 How. 279. Craft V. Bullard, 1 S. & M. Ch. 366. (The State v.) Walk. 409, 537. Creighton (Green v.) 7 S. & M. 197. Crisman v. Beasley , 1 S. & M. Ch. 561. Critchlow (Peck v.) 1 How. 243. Crockett & Harper v. Young, 1 S. & M.241. Cross (Palmer v.) 1 S. & M. 48. Crowder (Benton v.) 7 S. & M. 185. (Harrisoni>.)6S.&M.464. Cumraings & Spyker (Rowley & Gause v.) 1 S. & M. 340. Cunningham (Buckles «.) 6 S. & M. 358. Curtis (Doe v.) 3 How. 230. Cushing's legal representatives*. Gib- son, Walk. 87. D. Dabney v. Stidger, 4 S. & M. 739. Daggett, (Chichester & Van Wych v.) •2 How. 863. *Dahlgreti v. Duncan, 7 S.& M.380. Daingeifield v. The State, 4 How. 658. (Wemple v.) 2 S. & M. 445. Damewood v. The State, 1 How. 262. Daniel (Humphries v.) Freem. Ch. 251. & Taylor, (Hughes v.) "Walk. 488. Daniel's adm'r (Nichols & Cotler v.) Walk. 224. Davanay (Coffman v.) 2 How. 915. Davidson v. Moss, 5 How. 673. (Moss V.) 1 S. & M. 112. V. Morris, 5 S. & M. 564. Davis (Blackwell w.) 2How. 812. V. Black, 5 S. & M. 226." V. Brandon, 1 How. 154. (Carmichael v.) Walk. 221. (Defrance v.) Walk. 69. V. Dixon's admr, 1 How. 64. ' V. Farrington, Walk. 304. V. Foy, 7 S. & M- 64. V. Helm, 3 S. & M. 17. V. Jordon, 5 How. 295. V. Mikell, Freem. Ch. 548. V. Minor & Wife, 1 How. 183. , -^- V. Presler, 5 S. & M. 459. V. Pryor, 6 S. & M. 114. V. Rovents, 1 S. & M. Ch. 543. V. Singleton's adm'r, 2 How. 673. Davis V. Tiernan & Co. 2 How. 786. V. The Slate, 6 How. 399. V. Yerby, 1 S. & M. Ch. 508. Davis's adm'r (Wilkinson v.) Freem. Ch. 53. heirs v. Foley, Walk. 43. Dawson v. Williams, Freem. Ch. 99. Dean v. McKinstry, 2 S. & M. 213. V. The State of Mississippi, 2 S. & M. 200. Decker & Hopkins, (Harry «.) Walk. 36. Defrance v. Davis, Walk. 69. Delafield v. Anderson,? S. & M. 630. Delahuff v. Reed, Walk. 74. Deloach v. Walker and wife, 7 How. 164. Demoss v. Brewster, 4 S. «S M. 661. V. Camp, 5 How. 516. (Thornton v.) 5 S. & M. 609. Deminds v. Kirkman, 4 S. & M. 644. Denney (Gridley v.) 2 How. 820. Dennis (Jennings v.) 6 S. & M. 379. V. (Reaves v.) 6 S. & M. 89. Dennison v. Lewis, 6 How. 517. Denson, (Smith v.) 2 S. & M. 326. Denton, (Patterson v.) 1 S. & M. Ch. 592. Detorly, (Porter v.) 1 S. & M. 163. Devane v. Calching, 2 S. & M. 884. (Doyle «.pFreem. Ch. 345. Dick, (Duncan v.) Walk, 381. TABLE OF CASES. Dick V. Grissom, Freem. Ch. 428. V. Truly, 1 S. & M. Ch. 557. Dickson (Bank of Port Gibson ».) 4 S. & M. 689, II. Hamer, Freem. Ch. 284. V. Hoff's adm'r, 3 How. 165. V. Moody, 3 S. & M. 17. V. Parker, 3 How. 219. (Trustees of Jefferson Coll. v.) Freem. Ch.474. Dignowitty, (Doe v.) 4 S. & M. 57. Diliahunty (Brown v.) 4 S. & M. 713. V. Smith, 7 How. 673. Dillird, (Morris ti.) 4 S. & M. 636. Dillingham, v. Jenkins, 7 S. & M. 479. (Montgomery v.) 3 S. & M. 647. Dillon V. Cook, 5 S. & M. 773. Dinsmore, (Frelerell v.) Walk. 484. Dismnkes, (Terry v.) Walk. 180, 197. Dixon (Davis v.) 1 How. 64. — V. Poindexter, Freem. Ch. 721. V. Richards, 2 How. 771. & Starkey v. Lacoste, 1 S. & M. 70. Dobyns (Cowden v.) 5 S. & M. 82. Dodge, (Swett v.) 4 S. & M. 667. Doe V. Bradley, 6 S. & M. 485. Caillaret v. Bernard, 7 S. & M. 319. (Coleman v.) 4 S. & M. 40. V. Curtis, 3 How. 230. V. Dignowitty, 4 S. & M. 57. Freeland v. McCaleb, 2 How. 756. Hickey v. Gilbert & Deloach, 1 How. 32. ■ ex dem. heirs of Weast (Brown v.) How. 181. V. King's heirs, 3 How. 135. Nevitt V. Beaumont, 6 How. 337. - — Stark V. Gildart, 5 How. 606. V. Van Campen, 3 How. 66. (Wallis V.) 2 S. & M. 220. (Andrews v.) 6 How. 554. Dollahite v. Orne, 3 S. & M. 590. Dominges v. State, 7 S. & M. 475. Donnell, (Heaver'in v.) 7 S. & M. 244. Donoho V. Petit, Walk. 240. Dorsey (Agricultural Bank v.) Freem. Ch. 338. (BuUard v.) 7 S. & M. 9. V. Merritt, 6 How. 390. (Money v.) 7 S. & M. 15. V. Pierce, 5 How. 173. M. Doss V. Armstrong, 6 How. 258. V. Jones, 5 How'. 158. (Randolph v.) 3 How. 205. Doty, (The State v.) Walk. 230. Dougherty v. Comptou, 3 S. & 100. Douglass V. Hendricks, Walk. 230. (Sanders v.) 3 S. & M.454. Dowell V. Boyd, 3 S. & M. 592. (James v.) 7 S. & M. 333. V. Sanders, 7 S. & M. 206. V. Webber, 2 S. & M. 453. Dowling V. the State, 5 S. & M. 664. Downs V. Ladd, 4 How. 40. V. Planters Bank, 1 S. & M. 361. Do wns's heirs v. Downs's heirs, 2 How. 915. Doxey, (Miller & Nelder v.) Walk. 339. Doyle V. Devane, Freem. Ch. 345. — (Frost V.) 7 S. & M. 68. Drake v. Collins, 5 How. 353. V. Henley, Walk. 541. Duckworth, v. Millsaps, 7 S. & M. SOS. Duggin V. McGruder, Walk. 112. Dunbar, (Hart v.) 4 S. & M. 273. Duncan, (Bolls v.) Walk. 161. (Dahlgren ■«.) 7 S. & 280. M. V. Dick, Walk. 281. (Ross V.) Freem. Ch. 587. V. Watson, 2 S. & M. 121. Dunn V. Newman, 7 How. 582. V. Vannerson, 7 How. 579. Dunlap V. Burnett, 5 S. & M. 702. (Parkhurst v.) 6 How. 577. Duvall V. Cox, 5 How. 12. Dyche, (Riggs v.) 2 S. & M. 606. Dye's adm'r v. Buttell, 7 How. 234. heirs, (Kilpatrick v.) 4 S. & M. 289. Dykes (Duckey v.) 2 S. & M. 60. (Pass V.) 8 S. & M. 10 TABLE OF CASES. E. Eagt (Chace v.) Walk. 439. Easlin v. Vandorn, Walk. 214. Edganon V. McRea, 5 How. 183. Edmonson v. R5berts, 1 How. 322. V. Roberts, 2 How. 822. (Roberts v.) 4 S. & M. 730. Edwards ti. Roberts, 7 S. & M. 544. V. Williams, 2 How. 846. Elder (Smith v.) 7 S. & M. 507. Eldridge (Addison v.) 1 S. & M. 510. Elliot (Laud v.) 1 S. & M. 608. Elliott V. Connell, 5 S. & M. 91. (King V.) 5 S. & M. 428. Ellis V. Martin, 2 S. & M. 187. V. Ward, 7 S. & M. 651. Ellis's adm'r v. Planters Bank, 7 How. 235. • V. Commercial Bank of Natchez. 7 How. 294. EUsey v. Stone, 5 S. & M. 21. Ely (Thrasher v.) 2 S. & M. 139. Emanuel v. Laughlin, 3 S. &. M. 342. Embry (Robins «.) 1 S. & M. Ch. 207. Emerson (Amer. Life Ins. and Trust Co.J).)4S. &M. 177. Emmons v. Myers, 7 How. 375. Endicott (TurnbuUi).) 3 S. &M.362. Englehard v. Slater, 7 How. 538. & Silverberg (Young v.) 1 & Steinberg v. Sutton, 7 How. 19. How. 99. (White v.).2S. & M. 38. Enosw. Smith, 7 S. & M. 85. Erwin (Saunders v.) 2 How. 738. Eskridge v. Jones, 1 S. & M. 595. Esterling (Barlow v.) Walk. 302. Estes (Thomas v.) 2 S. & M. 4i{9. Estis V. Rawlins, 5 How. 258. Evans (Arnett v.) Walk. 471. (Hope V.) 1 S. & M. Ch. 737 195. '. (Hope V.) 4 S. & M. 321. (Hughes & ScottD.)4S. &M. & Isham (Heard & Evans v.) Freem. Ch. 79. Everett «. Winn, 1 S. & M. Ch. 67. Everly (Smith v.) 4 How. 178. Erwing v. Glidwell, 3 How. 332. V. Burton, 5 How. 660. Ex parte Brown, 1 How. 303. Fairchild v. Grand Gulf Bank, 5 How. 679. Falconers. Frazier, 7 S. & M. 235. . V. Holland, 5 S. & M. 689. Fall V. Commis'rs Sinking Fund, 3 S. & M. 127. Farmers and Merchants Bank v. Tap- pan, 5S. & M. 112. Farr (Moody v.) 6 S. & M. 100. Farrar v. Gaillard's adm'r, Walk. 269. Farrar's adm'r (Tirirell v.) Walk. 417. Farrington (Davis v.) Walk. 304. Farrish v. The State, 2 How. 826. ^ V. The State, 4 How. 170. Farve's Heirs v. Graves, 4 S. & M. 707. Fatheree V. Faiheree, Walk. 311. V. Long, 5 How. 661, Fatheree (Lang v.) 7 S. & M. 404. Feamster (Austin & Co. v.) 1 S. & M- 166. Fearn (Mitchell v.) 3 How. .122. Fearne, Wilcox, (McNutt v.) Freem, Ch. 116. Felder v. Meredith, Walk. 447. Fellows -(Lewis v.) 6 How. 261. Fenner (Bonaffe v.) 6 S. & M. 212. Ferriday v. Selser, 4 How. 506. V. Selser, Freem". Ch. 258.. Ferriere (Hoseyu.) 1 S & M. 663. Field V. Morse, 1 S. & M. 347. Pin nail (Freeman v.) 1 S. & M. Ch. 623. (Baynton v.) 4 S. & M. 193. Finncanew. Kearney, Freem. Ch. 65, Fisher v, Allen, 2 How. 611, TABLE OF CASES. il 11 Fisher v. Grimes, 1 S. & M. Ch. 107. (Guasquet v.}'!S.&.U. 313. (Harris v.) 5 S. & M. 74. (Hughes ».) Walk. 516. Fiek (Cook v.) Walk. 423. & McNiell V. McNiell, 1 How. 535. (Fox V.) 6 How. 328. (Officers of Court ».) 7 How. 403. Fitch V. Lawton, 6 How. 371. V. Scott, 3 How. 314. V. Stamps, 3 How. 487. & Brown (Swisher u.) IS. &M. 541. Fitzpatrick (Kinley v.) 4 How. 59. V. Rayi 4 S. & M. 645. Flack (VanVacter v.) 1 S. & M. 393. Fieeson v. Nicholson, Walk. 247. Fleming v. Fulton, 6 How. 473. Fletcher v. Benbrook, 5 S. & M. 619. V. Rapp, 1 S . & M. Ch . 374. „. Wilson, 1 S. & M. Ch. 376. Flournoy v. Burke, 4 How. 337. V. Smith, 3 How. 63. Flower (States.) Walk. 318. Flowers (Carson ?;,) 7 S & M.99. (Collins V.) 1 How. 26. Floyd V. Holmes, Freem. Ch 408. Foley (Carmichael v.) 1 How. 591. (Davis's heirs v.) Walk. 143. Folsom (Fore v.) 4 How. 282. Footer. Garland, 1 S. & M. Ch. 95. Forbes (MoRaven v.) 6 How. 569. Ford (Calmes ii.) 6 S. & M. 190. (Freeman v.) Walk. 505. (Grigsby v.) 3 How. 184. V. Hurd, 4 S. & M. 683. : (McGehee v.) 5 S. & M. 769. & Baines v. McGehee, Freem. Ch. 460. (Page ».) 2 S. & M. 266. -^!r- (Pickett's ex'rs v.) 4 How. 246. N. W. V. Russell, Freem. Ch. 42. V. Woodward, 2 S. &M. 260. Fore il. Folsom, 4 How. 282. Forniquet v. West Feliciana Railroad 6 How. 116. Fortinberry (Atkinson v.) 7 S. & M. 302. Fortner v. Parham & Gibson, 2 S. & M. 151. Foster's heirs (Newman v.) 3 How. 383. Foster V. Alston, 6 How. 406. (Alston V.) Freem. Ch. 732. V. Collins, 5 S. & M. 259. (Hamblin v.) 4 S. & M. 139. V. Pinckard, 5. S. &M. 792. V. Sumner, 3 S. & M. 606. Foute, V. Campbell, 7 How. 377. Fowler J). Austin, 1 How. 156. Fox V. Fisk, 6 How. 328. Foy (Davis v.) 7 S. & M. 64. Francher (Hairston v.) 7 S. & M. 249. Francis (Grigsbey v.) 2 How. 845. (Robinson v.) 7 How. 458. (Prescott, Jones & Co. %.)- 4 S. & M. 633. Franklin (Jameson v.) 6 How. 376. Frazier (Falconer v.) 7 S. & M. 235. V. Gervais, Walk. 73. Freeland v. Wan & Moody, 1 S. & M. 531. (Scott V.) 7 S. & M. 409. Freeman v. Finriall, 1 S. & M. Chi 623. V. Ford, Walk. 505. V. Rhodes, 3 S. & M. 329. Fretwell v. Dinsmore, Walk. 484. Friar v. The State, 3 How. 422. Frost V. Doyle, 7 S. & M. 68. V. Patrick, 3 S. & IM. 783. Fulcord V. Hamberlin, 4 S. & M. 649. Fulgham (Marshall a.) 4 How. 216. Fuller (Seltzer v.) 6 S. & M. 185. Fulton V. M'Afee,5 How. 751. (Fleming v.) 6 How. 473. (Graves v.) 7 How. 593. Fullz (Copes V.) 1 S. & M. 623. V. House, 6 S. & M. 404. Fuqua (Stewarts.) Walk. 175. Furness v. Porter, Walk. 442. Furr (Pearoe v.) 2 S. & M. 64, 12 TABLE OF CASES. G. Gaillard's adm'r (Farrar v.] Walk. 269. Gaines «. Smiley, 7 S. & M. 53. Gale V. Green, Walk. 159. Galloway (Com. Bank of Manches- ter V.) 6 How. 515. • (Rogers v.) 3 How. 58. Gamble j;. Trahen,»-3 How. 32. Gardly (Bogard v.) 4 S. &. M. 302. Garey (Ross v.)7 How. 47. Garland (Foote v.) 1 S. & M. Ch. 95. V. Rowan, 2 S. & M. 617. GarnerV. Collins, Walk. 518. Garrett V.Mississippi & Alabama Rail- road Co. Freem. Ch. 70. . •- V. Tinnen, 7 How. 465. (Tinnin v.) 4 S. & M. 207. Garvin «. Lowry, 7 S. & M. 24. Gary (Wadlington v.) 7 S. & M. 522. Gaskins (Bailey v.) 6 How. 519. (Miller V.) 1 S. & M. Ch. 524. Gasquetu. Fisher, 7 S. & M.313. Gasquet, Parish of v. Warren, 2 S. & M. 514. Gaunt (Grover v.) 6 S. & M. 317. Gayden v. Bates, Walk. 269. (Wren v.) 1 How.. 365. George (Stockton v.) 7 How. 172. Gertnany (Hurd v.) 7 How. 675. Geron (Sumpter v.) 4 Htiw. 263. Gervais (Frazer v.) Walk. 73. & Morse (Head & Davis v.) 431. Gibbs (Gordon v.) 3 S. & M. 423. (Smith V.) 2 S. & M. 479. Gibson (Byn v.) 1 How. 568. (Uameron.i).) Walk. 500. * (Cushing's rfep's. v.) Walk. 87. V. Gibson, Walk. 364. V. Hnghes, 6 How. 315. . (Jennings v.) Walk. 234. f. Newman, 1 How. 341. V. Powell, 6 How. 60. V. Powell 5 S. & M. 712. Ex parte, Walk. 377. Gibson'slveirsD. Nibletl, 1 S. & M. Ch. 278. Gilbert & Deloach v. Hickey, 1 How. 32. , Bailey & Draper (Walker ».) Freem. Ch. 85. (Walker J).) 7 S. & M. 456. * Gildart & Morris (Starke v.) 4 How. 267. Gildatt's adm'r t). Howell, 1 How. 198. Gildart's heirs v. Starke, 1 How. 450. Gilleland & Peebles v. Wilkins, 1 How. 574. Gillespie (Nevittw.) 1 How. 158. Gillock (Horn v.) Walk. 107. Gilmer (Lewis v.) 3 S. & M. 560. (Thornhill v.) 4 S. & M. 153. Gilmore v. Borders, 2 How. 824. V. Carman, 1 S.- & M. 279. Girault t). Anderson, Walk. 30. Gireandeau (Lapice v.) Walk. 480. Glass V. Lobdell, Walk. 105. V. Moss, 1 Hov^. 519. (Peck V.) 6 How. 195. Glasscock (Martin, Pleasants & Co. v.) 1 S. & M. Ch. 17. Glidwell (Ewingw.) aHow. 332. Glidewell v. Hite, 5 How. 110. Goddard v. Long, 5 S. & M. 783. Godley v. Goodloe, 6 S. & M. 255. Goode V. Mayson's adm'r, 6 How. 543. V. Linsecum & Nash, 1 How. 281. Goodloe (Godley ».) 6 S. & M. 255. Goodman (Mingo & Allen v.) 1 How. 552. Goodson (Cotton v.) 1 How. 295. Goodwin u. Anderson; 5 S. & M. 730. Goodwyu V. The State, 4 S. & M. 520. ' Gordon v. Gibbs, 3 S. & M. 473. <— V. Parker, 2 S. & M. 485. ' (Tucker v.) 7 How. 336. V. Watkins, 1 S. & M. Ch. 37. Governor, The (Carmichaeli;.) 3 How 236. V. Gridley, Walk. 328. (Montgomery!;.) 7 How. 68. Gowing V. Bland's adtu'rs & heirs, 3 How. 813. Grafton t>. Grafton, 8 S. & M. TABLE OF CASES. 13 Giaham (Baugham & Morton v.) 1 How. 220. Gii,nd Gulf Railroad & Banking Co. , (Thompson v.) 3 How. 240. Grand Gulf Bank v. Barnes, 2 S. & M.'l65. V. Henderson , 5 How. 292. M. 115. (Hughes V.) 2 S. & ■ (Statew.)4S. &M. 439. . Grant (Hand & Huddleston v.) 5 S. & M. 508. V. Planters Bank, 4 How. 326. Rupert V.) 6 S. & M. 433. Graves (Carter v.) 6 How. 519. (Farve's heirs v.) 4 S. & M. 707. ■V. Fulton, 7 How. 592. ■ V. Mississippi & Alabama Rail- road Co. 6 How. 548. V. Monet, 7 S. & M. 45. (Puckett V.) 6 S. & M. (Shields v.) 6 How. 262. V. Williams, 2 S. & M. Green's adm'r v. Tanstall, 5 How. 638. Greenleaf u. Highland, Walk. 375. Greeson v. The State, 5 How. 33. Gresham v. Roberts's adm'r, 3 S. & M. 471. Gridley v. Briggs, La Coste & Co. 2 How. 830. V. Denny, 2 How. 820. (Governor v.) Walk. 328. (Helme.) Walk. 511. (Linn I). ) Walk. 548. (Rowland u.) 1 How. 210. Gridley (Tooley v.) 3 S. & M. 384. 286. Gray (Burk v.) 6 How. 527. V. Henby, 1 S. M. 598. Grayson v. Williams, Walk. 298. V. Wilkinson, 5 S. & M. 268. Green (Brandon v.) Walk. 372. V. Creighton, 7 S. & M. 197. V. Finacure, 5 How. 542. (Galew.) Walk. 159. V. Green, 3 S. & M. 473. B. Planters Bank, 3 How. 43. V. Robinson, 3 How. 105, V. Robinson, 5 How. 80. (Robinson v.) 6 Hoiy. 233. . V. Whiting, (estate of), 1 S. & M. 579. & Nevitt V. Hankinson's adm'r. Walk. 487. & Nevitt (Judge of Probate v.) 1 How. 146. 493. . V. Tucker, Freem. Ch. Rep. 209. Griffin (Adams v.) 3 S. & M. 556. (Montgomery & Norris v.) Walk. 453. Griffing v. Hopkins & Elliott, Walk. 49. Griffith ». Vertner, 5 Ho#736. Griffith's adm'r. v. Vertner, Walk. 414. Grigsby w. Francis, 2 How. 845. Grigsby v. Ford, 3 How. 184. Grimball v. Marshall, 3 S. & M. 359. V. Mississippi & Alabama Railroad Co. 3 S. & M. 38. Grimes (Fisher v.) 1 S. & M. Ch. 107. (Wade ».) 7 How. 426. Grishaw (Porter v.) 3 How. 75. Grissom (Dick v.) Freem. Ch. 428. V. Reynolds, 1 How. 670. Grover v. Gaunt, 6 S. & M. 317. Guinard (Williams v.) 2 How. 722. Guise V. Middleton, 1 S. & M.' Ch. 89. Guyot (Henderson v.) 6 S. & M. 209. Gwin V. Harris, 1 S. & M. Ch. 528. •— V. McCarroll, 1 S. & M. 351. V. Melmoth, Freem. Ch. 505. V. Stone, 1 S. & M. Ch. 124. H. Hackman (Abbott v.) 2 S. & M. 510. Hackler's heirs v. Cabell, Walk. 91. Hageman v. Sharkey, 1 How. 277. 2 Hairston ». Francher, 7 S. & M. 249. (Judge of Probate ».) 4 How. 242. 14 TABLE OF CASES. Hale (Berry v.) 1 How. 315. Haley (Roberts & Phillips v.) 2 How. 886. ' (Warren v.) 1 S. & M. Ch; 647. Halfacre (Smith v.) 6 How. S82. Hall V. Browder's adm'rs 4 How. 224. Halliday (Harris, Wright & Co. v.) 4 How. 338. ' Halsey & Height (Henry & Hoyle v.) 5 S. &M. 573. ».Pincfeard, 6'HovC. 278:- Hallock (Lauderdale v.) 7 S. & M. 622. Halls K. Thompson, 1 S. & M. 443. Hamberlin (Fulcord v.) 4 S. & M. 649. V. Perry's ex'ra, 7 How. 145. .. V. Terry, 1 S. & M. Ch. 589. ^ Hamblin (^tt v) 3 S. & M. 285. Hamblins v. Foster, 4 S. & M. 139. Hamer (Arnold & Pinckard w.) Freem. Ch. 509. (Commercial & Railroad Bank of Vicksburg a.) 7 How. 448. (Diekson v.) Freem. Ch. 265. V. Johnston, 5 How. 698. V. Johnston, 1 S. & M. Ch. 563. (Marlowj).) 6 How., 189. (Newell & Pierce ».) 4 How. 684. (Nevitt«.)i5 S.& M. 145. (Stillman «.) 7 How. 421. Hamer & Richards (Tyson ».)• 2 How. 669. ' Hamilton v. Cooper, Walk. 542. Hammond & McRaven (Jennings v.) 1 S. & M. 174. Hand V. Town -of Columbus, 4 S. & M. 203. Hand & Huddleston ». Grailt, 5 S. & M. 508. , Hankirson's adm'r v. Green & Ne- • vitt, Walk. 487. . Hanna v. Harper, 3 S. & M. 793. Hansborough (Hoy v.) Freem. Ch. 533. Hardaway & Boyakin v. Biles, 1 S. & M. 657. Hardy v. Smith, 3 S. & M. 316. Hare v. Sprowl, 2 How. 772. V. State, 4 How. 187. Hargrove v. Martin, 6 S. & M. 61. Hai'grove (Upshur v.) 6 S. & M. 286. Hafkay (Beaty v.) 2 S; & M. 563. Harkins (Lovelady ».) 6 S. & ' M. 412. Harmon v. James, 7 S. & M. 111. Sanderson, 6 S. & M; 41. Harney v. Demoss, 3 How. 174. V. Pack & Clifton, 4 S. & M. 239. (Parham v.) 6 S. & M. 55. Harper v. Archer, 4 S. & M. 99. -^ v. Bdndurant, 7 S. & M. 397. V. Calhoun, 7 How. 203. (Hanhar.) 3 S. & M. 793. V. Lowry,' 6 How. 268. • (Pickens v.) 1 S. & M. Ch. 539. V. Reno, Freem. Ch. 323. Harrell (Bull v.) 7.How. 9. V. Bixler, Walk. 176. Harrington v. Harrington, 2 How. 701. Harris (Agricultural Bank v.) 2 S. & M. 463. ' ' ' (Brewer «.) 2 S. & M. 84. V. Balton, 7 How. 167. (Fisher v.) 5 S. & M. 74. (Gwin V.) 1 S. & M. Ch. 528. V. Herberton, 5 How. 575. (Mount-y.) 1 S. & M. 185; V. Newman, 3 S. & M. 565. Newman, 5 How. 654. V. Planters Bank, 4 S. & M. 701. Planters Bank, 7 How. 346. & Plummer (Newman v.) 4 How. 52^, , Wright & Co. V. Halliday, 4 How. 338. -, Ferguson & Co. (Williams^;.) 2 How. 627. Harrison v. Agricultural Bank, 2 S. & M. 307. V. Breeden, 7 How. 670. V. Balfour, 5 S. & M. 301. V. Crowder, 6 S. & M. 464. V. City of Vicksburg, 3 S. & M. 581. : — V. Motz, 5 S. & M. 578. & Gibson v. Stowers, Walk. 165. Harriston v. Sale, 6 S. & M. 634. Harry ti. Decker & Hopkins, Walk. 36. TABLE OF CASES. 15 Hart V. Dunbar, 4 S. & M. 273. Harvie ». Bostic, 1 How. 106. Hatch (Behaly v.] Walk. 369. Haul), Morris, Jenkins & Steele, (Pip- kin V.) Freem. Ch. 254. ■ r- (Robertson v.) Freem. Ch. 265. Hayne v. Beauchamp, 5 S. & M. 515. Hayter, (Huston v.) 6 How. 580. Haydon v. Moore, 1 S. & M. 605. Hadip V. Leggett, 6 S. & M. 336. — D. Noland, 6 S. & M. 294. Head v. Beaty, 5 How. 480. & Davis V. Gervais & Morse, Walk. 431. Heard & Evans «. Isham, Freem. Ch. 79. Heaverin v. Donnell, 7 S. & M. 244. Heckingbottom v. Shell, 3 S. & M. 588. Helderburn (Commercial & Railroad Bank D.) 6 How. 536. Helm (Davis J).) 3S. &M. 17. V. Gridley, Walk. 511. — (Miller v.) 2 S. & M. 687. (Rauth ».) 6 How. 127. V. Smith, 2 S. & M. 403. Hemphill v. Bank of Alabama 6 S. & M. 44. Henby (Gray B.) 1 S. & M. 598. Henderson (Bull v.) 6 How. 311. , .^-r— (Guyot V.) 6 S. & M. 309. . .— (Hill V.) 6 S. & M. 351. . — ■ V. Hamer, 5 How. 525. . V. Mississippi Union Bank, 6 S. & M. 314. (Merrick v.) Walk. 485. ^ (Simmons v.) Freem. Ch. 493. r (Poindexter v.) Walk. 176. V. Talbert 5 S. & M. 109. ■ (Wood & wife w.) 2 How. • V. Wilson, 6 How. 65. 1 (Wright V.) 7 How. 539. : (Whitehead v.) 4 S. & M. 704. „. Wilson, 4 S. & M. 732. Hendricks (Douglass v.) Walk. 230. V. Huddleston, 5 S. & M. 893. 422. 388. (O'Reilly v.) 1 S. & M. HEudricks v. Snodgrass, Walk. 86. Henley (Drake v.) Walk. 541. Henry v. Hoover, 6 S. & M. 417. Henry & Hoyle i). Halsey & Height, 5S. &M. 573.' Herd (Lindsay v.) Walk. 18. Herrington v. Bradford's ex'r, Walk. 520. - V. Herrington, Walk. 305, 332. Herring v. Winans, 1 S. & M. Ch. 466. V. Wellbns, 5 S. & M. 354. Hester v. Hooker, 7 S. & M. 768. Hewitt (Mitchell v.) 5 S. & M. 361. Heyfron, Exparte, 7 How. 127. V. Mississippi Union Bank, 7 S. & M. 434. Hickey, Ex parte, 4 S. & M. 751. Hicks V. Mdrphy, Walk. 66. (Tanner v.) 4 S. & M. 294. Highland (Greenleaf v.) Walk. 375. Hightower (Wilty v.) 6 S: & M. 345. Hill V. Anderson, 5 S. & M. 216. (Briggst).) 6 How. 362. V. Henderson, 6 S. & M. 351. & Henderson v. Calvin & Hurst, 4 How. 231. V. Robeson, 2 S. & M. 541. (Rappleye v.) i How. 295. Hillery (Morris u.) 7 How. 61. Hinds V. Brazealle, 2 How. 836. V. Terry, Walk. 80. Hines v. Baine, 1 S. & M. Ch, 530. V. Rogers, Slooumb & Co. 3 How. 486. Hit-tuk-ho-mi J). Watts, 7 S. & M, 363. HofTs adm'r (Dickson v.) 3 How. 165. Hoggatt V. Bingaman, 7 How. 565. -^ V. Montgomery, 6 How. 93. Hoggatt's adm'rs' v. Hunt's ex'rs, Walk. 816. ;6 S. & M. 199, 323 (2 cases.) ■ V. Moore,'4 S. & M. 594. ■ (Philbrick v.) 6 How. 91. • (Rankin v.) 3 S. & M. Holfcway (Byrd v.) < 614. Holland 689 Holloman 559. (Falconer v.) 5 S. & M, V. Holloman, 5 S. & M 16 TABLE OF CASES. Holmes v. Cartiian, Freem. Ch. 408. (Floyd V.) Freem. Ch. 408. V. Holmes, Walk. 474. (Neilson v.) Walk. 261. (State »,) Walk. 415. (Slocumb V.) 1 How. 139. Holt V. Briscoe, Walk. 19. V. Mills, 4 S. &.M. 110. Hood V. Bowman, Freem. Ch. 920. Hooke V. Wood, 2 How. 867. Hooker (Hester v.) 7 S. & M. 768. (Lee V.) 7 S. & M. 601. Hoopes & Bogait v. Newman, 2 S. & M. 71. Hoover (Henry v.) 6 S. & M. 417. (Rowland v.) 2 How. 769. Hope «. Evans, 1 S. & M. Ch. 195. ; 4 S. & M. 321. Hopkins & Elliott (Griffing v.) Walk. 49. Hopson (Allen v.) Freem. Ch. 276. Horn V. Gillock, Walk. 107. Hosey v. Ferriere, 1 S. & M. 663. Hough (Bohannan v.) Walk. 461. V. Perkins, 2 How. 724. House v: Bierne, 5 S. & M. 622. (Fultz V.) 6 S. & M. 404. & Selser (Vick v.) 2 How. 617. Houston V. Burney, 2 S. & M. 583. (Lowry v.) 3 How. 394. V. Roystor, 7 How. 543. V. Royston, 1 S. & M. 238. V. Smith, 2 S. & M. 597. Howard (Melton v.) 7 How. 103. V. Cousins, 7 How. 114. (Worten«.) 2 S. & M. 527. Howell (Gildart's adm'r n.) 1 How. 198. Hoy V. Hansborough, Freem. Ch. 533. Hoyetw. Conch, 5 How. 188. Hoyt (Tomlinson & Collins v.) 1 S. & M. 515. Hubbard (Games o.) 2 S. & M. 108. Hubert V. McGahey, Walk. 246. Huberts. Williams, Walk. 175. * Huddleston (Hendricks v.) 5 S. & M. 422. Huffman (Burnham D.) Walk. 381. Hughes V. Buckingham, 5 S. & M. 632. V. Daniel & Taylor, Walk 488. - V. Fisher, Walk. 576. - (Gibson v.) 6 How. 315. - V. Grand Gulf Bank, 2 S. & M. 115. V. Lapice, 5 S. & M. 451. . (Murdock v.) 7 S. & M. 219. & Scott V. Evans, 4 S. & M. , 737. Humphreys v. Irvine, 6 S. & M. 205. Humphries v. Vertner, Freem. Ch. 251. Hundley v. Buckner, 6 S. & M. 70. (Sims V.) 2 How. 896. Hunt & Tucker v. Booth, Edwards & Hunt, Freem. Ch. 215. V. Chambliss, 7 S. & M. 532. (Cohea v.)2S. &M. 227. V. Johnson, Freem. Ch. 282. (Nutt V.) 4 S. & M. 702. Hunt's exr's (Hoggatt's adm'r v.) Walk. 216. Hunter (Carraichael v.) 4 How. 308. (Jones v.), 4 How. 342. V. Talbot, 3 S. & M. 754. Hunter's adm'r v. Hunter & Dough- erty, Walk. 194. Huntington (Carson v.) 6 S. & M. 111. Hurd (Ford v.) 4 S. & M. 683. V. Germany, 7 How. 675. V. Smith, 5 How. 563. V. Tombes, 7 How. 229. Hurst V. Strong, 1 How. 123. (Torrence v.) Walk. 403. Huston t'. Hayter, 6 How. 580. Hntchins v. Lee, Walk. 293. Hutchinson v. Minis, 7 S. & M. 388. Hyatt (Bingaman v.) 1 S. & M. Ch. 437. Hyde & Merritt v. Merritt, Walk. 430. TABLE OF CASES. 17 I. Her (Cage v.) 5 S. & M. 410. V. Routh's heirs, 3 How. 276. Impson (Barfield v.) 1 S. & M. 326. Ingraham v. Russell, 3 How. 304. Ingram v. War, 5 S. & M, 746. Irvine (Humphreys v.) 6 S. & M. 205. Irving & Kersey (Leach v.) 2 How. 887. (Montgomery v.) 3 How. 191. Irwin V. Jones,, 1 How. 497. ». WiUiams, Walk. 314. Irwin &• Wright v. Roach, Walk. 386 Isham V. Jackory, Freem. Ch. 59. V. The State, 6 How. 35. Ives (Morrison v.) 4 S. & M. 653. & Newell I). Pierson, Freem. Ch. 220. (Stewart v.)l S. & M. 197. (Willis & Conley j;.) 1 S. & M. 307. Izod V. Addison, 5 How. 432. Jack V. The State, 6 S. & M. 494. Jackory (Isham v.) Freem. Ch. 59. Jackson (Hunt v.) Freem. Ch. 283. (Lyons & Gilmore ti.) 1 How. 474. ■ (MoGilvry v.) 4 How. 345. (Runnels v.) 1 How. 358. (Morton v.) 1 S. & M. 494. James v. Dowell, 7 S. & M. 333. (Harmon v.) 7 S. & M. 111. V. Rowan, 6 S. & M. 393. (Scott V.) 3 How. 307. Jameson v. Franklin, 6 How. 376. Jamison (Welch v.) 1 How. 160. Jeffers (Maury v.) 4 S. & M. 87. Jelks (Mullen v.) Walk. 205. Jenkins v. Bodley, 1 S. & M. Ch. 338. (Dillingham v.) 7 S. & M. 479. V. Whitehead, 1 S. & M. 157. V. Whitehead, 7 S. & M. 577. Jennings v. Dennis, 6 S. & M. 379. V. Gibson, Walk. 234. V. Hammond & McRaven, 1 S. & M. 174. V. Summers, 7 How. 453. (Thomas ».) 5 S. & M. 627. Johnson li. Blassdale & Grubbs, 1 S. & M. 17. — (Judge of Probate v.) 1 How, 297. . 680. (Judge of Probate v.) 4 How. (Lewis w.y Walk. 260. 2* Johnson «. Planters Bank, 4 S. & M. 165. (Planters Bank k.) 7 S. & M. 449. (Porter v.) 2 How. 736. V. Riehey, 4 How. 233. (States.) Walk. 392. V. Taylor, 3 S. & M. 92. Johnston v. Beard, 7 S. & M. 214. (Hamer v.) 1 S. & M. Ch. 563. State, 7 S. & 58. 64. Jones V. Bailey, 5 How* (Bibb V.) 7 How. 397. (Butler V.) 587. V. Com. Bank of Columbus, S' How. 43. V. Coon, 5 S. & M. 751. (Eskridge v.) 1 S. & M. 595. V. Hunter, 4 How. 343. (Irwin V.) 1 How. 497. V. McGahey, 1 How. 128. V. Miles, 1 How. 50. V. Mississippi & Alabama Rail- road Co. 5 How. 407. ("Sessions o.) 6 How. 123. B. Stanton, 7 How. 601. (State V.) Walk. 83. Jordan & Smith (Torrey v.) i How. 401. Joslin V. Coffin, 5 How. 539. ^udge of Probate v. Green & Nevitt, 1 How. 146. 18 TABLE OF CASES. Judge of Probate v. Hairston, 4 How. 242. V. Johnson, 4 How. 680. 297. 310. ■ V. Johnson, 1 How. • (Moore v.) Walk. Judge of Probate v. Phipps, 5 How. 59. V. Thompson, 3 How. 808. Judge of Probate of Adams County (Carter v.) 2 S. & M. 42. Judge of Probate of Amite County (Shropshire «.) 4 How. 142. Justice (Leflore v.) 1 S. & M. 381. K. Kain v. May, 5 S. & M. 368. Kanei). Burrows, 2 S. & M. 313. (Tooley v.) 1 S. & M. Ch. 518. Kearney (Barfield v.) Walk. 504. (Finncane v.) Freem. Ch. 65. Keirn (McAfee v.) 7 S. & M. 780. Keithley & Tisdale v. Bourne, 2 How. 683. Keller K. Scott, 2 S. & M. 81. Kelley v. State, 3 S. & M. 518. Kellogg V. Budlong, 7 How. 340. Kellogg's ex'rs (Strat v.) 7 How. 342. Kelsey v. Smith, 1 How. 68. Kerninghamu. Scanland, 6 How. 540. Kent V. Allbritain, 4 How. 317. Kerr J). Baker, Walk. 140. V. Brandon, 2 How. 910. V. Calvit, Walk. 115. V. Robeson, 5 How. 278. Kershaw v. SBrchants Bank of N. Y. 7 How. 386. Key (Rushing v.) 4 S. &' M. 191. Kilcrease v. Kilcrease, 7 How. 311. Kilpatrick v. Dye's Heirs, 4 S. & M. 289. Kimball v. Kimball, 1 How. 532. King (Blanton v.) 2 How. 856. «. Cooper ex'r. Walk. 359. V. Elliott, 5 S. & M. 428. V. The State, 5 How. 730. V. Terry, 6 How. 513. (Spear v.) 6 S. & M. 276. (Walkers.) 1 How. 17. King's Heirs (Doe ».) 3 How. 125. Kingsland (Clark & Co. v.) 1 S. & M. 248. Kinley v. Fitzpatrick, 4 How. 59. Kinney (Cannon «.) 1 S. & M. Ch. 555. Kirk V. Seawell, 2 S. & M. 571. Kirkland (Wilson v.) Walk. 155. Kirkman (Deminds v.) 1 S. & M. 644. Kitlridge v. Prim, Walk. 390. KliSield V. State, 4 Hgw. 304. Knight V. Yarborough, 7 S. & M. 179. Knowles (Prussell v.) 4 How. 90. Kyle (Linn v.) Walk. 915. (Northern Bank of Mississippi) ti. 7 How. 360. & Williams v. Cs^mes, 1 How. 121. L. Lacoste (Dixon & Starkey v.) 1 S. & M. 70. Ladd (Downs v.) 4 How. 40. Laine v. Shrock, Walk. 316. Lake v. Brown, 7 How. 661. Lake v. Munford, 4 S. & M. 312. Lancashire (Minor v.) 4 How. 347. Land v. Elliott, 1 S. & M. 608. V. Land, 1 S. & M. Ch. 158. V. Sharpless, Walk. 149. V. Warner, 6 S. & M. 155. Land's adm'r v. Lacoste, 5 How. 471. Lane (Cocke v.) 3 S. & M. 763. (Phillips V.) 4 How. 122. (^oss V.) 3 S. & M. 695. (Truly V.) 7 S. & M. 325. Lang V. Fatheree, 7 S. & M. 404. Jjanice v. Trigg, 6 S. & M. 641. Lapice v. Gireandean, Walk. 480. (Hughes «.) 5 S. & M. 451. Lard (Simmons v.) Walk. 159. TABLE OF CASES. 19 La Roche (Poindexter v.) 7 S. & M-. 699. Lasley v. Sisloff, 7 How. 157. Latham v. Morgan & Fitz, 1 S. & M. Ch. 611. Lauderdale v. Hallock, 7 S &M.622. Laughlin {Emanuel v.) 3 S. & M. 342. Laughman v. Thompson, 6 S. & M. 259. Lawton (Fitch v.) 6 How. 371. Lazarus v. Trible, 1 S. & M. 575. Lea (Branson v.) 5 S. & M. 149. Leach v. Irving & Kersey, 2 How. 887. ». Lebugan & Stanton, 2 How. 908. Leath & Grant v. Wright, 2 How. 774. Leatherman (Prosser v.) 4 How. 237. Lebuzan & Stanton (Leachu.) 2 How. 908. Ledbetter (Oldham v.) 1 How. 43. Ledyard, Hatter & Co. (Mclntyre v.) 1 S. & M. Ch. 91. Lee V. Hooker, 7 S; & M. 601. (Hutchinsj).) Walk. 293. V. Montgomery, Walk. 109. V. Peters, 1 S. & M. 503. (Woodhouse v.) 6 S. & M. 16L Leech v. Cooley, 6 S. & M. 93. Leflore v. Justice, 1 S. &. M. 381. Leftwich (Coleman v.) 3 How. 167. V. Orne, Freem. Ch. 207. Legett V. Hazlip, 6 S. & M. 326. V. Morris, 6 S. & M. 723. V. Simmons, 7 S. & M. 348. Legrand (Merrill v.) 1 How. 150. Lehr». Hall, 5 How. 54. V. Rogers, 3 S. & M. 468. V. Tarball, 2 How. 905. Leonard ». Austin, 2 How. 888. Levy (Winn v.) 2 How. 902. Lewis & Niles (Anderson & Orne v.) Freem. Ch. 178. (Brooks V.) 1 How. 207. (Connell v.) Walk. 251. (Dennison v.) 6 How. 517. V. Garrett's admr's 5 How. 434. V. Gilmer, 3 S. & M. 560. V. Fellows, 6 How. 261. V. Johnson, Walk. 260. (Parish & Co. v.) Freem. Ch. 299. V. Planters Bank, 3 How. 267, Lewis «. Sulcer, Walk. 21. V. Wood, 4 How. 86. Lewis's adm't v. Parish & Stamps, 1 How. 547. ■ Ligon (Terrell v.) Walk. 171. Lillard v. Planters Bank, 3 How. 78. Linder v. Aaron, 5 How. 581. Lindsay v. Herd, Walk. 18. (Wernans & January v.) 1 How. 577. Lindsey (Been u.) 2 S & M. 581. Linn v. Gridley, Walk. 548. W.Kyle, Walk. 315. Linsecum & Nash (Goode v.) 1 How. 281. Linton's heirs (Rulon v.) 2 How. 897. Little & Snyder (Owen v.) 326. (Surget V.) 5 S. & M. Z'.Q. Littlefield (White v.) 7 How. 406. Livingston (McNutt t'.) 7 S. & M. 641 . Lobdell (Glass v.) Walk. 105. Lombard v. Whitney & Lewis, Walk. 229. Lombat (Mobley v.) 7 How. 318. Long (Goddard v.) 5 S. & M. 782. V. United States Bank, Freem. Ch. 375. Longacre v. The State, 2 How. 637. Loomis V. Com. Bank of Columbus, 4 How. 660. Loper V. The State, 3 How. 429. Loring v. Willis, 4 How. 383. Louisiana, Bank of u. Ballard, 7 How. 371. Love V. Shoape & Martin, Walk. 508. Lovelady v. Harkins, 6 S. & M. 412. Lowry (Garvin v.) 7 S. & M. 24. (Harper v.) 6 How. 268. V. Houston, 3 How. 394. V. Lowry, Walk. 207. & Puckett V. McDonald & Ro- gers, 1 S. & M. Ch. 620. Loyd (Barnes's adm'ru.) 1 How. 585. Lucas V. Stewart, 3 S. & M. 231. Luckett's ex'rs (Brock v.) 4 How. 459. Luckey v. Dykes, 2 S. & M. 60. Lum (Com. & Railroad Bankof Vicks- burg V.) 7 How. 414. ' Lynch v. Comm'rs. of Sinking Fund, 4 How. 377. Lyons & Gilmore v. Jackson, 1 How. 474; 20 TABLE OF CASES. M. Madison County Court v. Alexander, Walk. 523. Magruder & Nichols w. Stuart's adm'rs, 4 How. 204. Mahon (Bower's adm'r w.) 1 How.276. Man & Moody, (Freeland v.) 1 S. & M. 531. Mannley (Taylor v.),6 S. & M. 305. Mann v. Nichols, 1 S. & M.,257. Manual v. Norcom, 7 Hpw. 150. Mardis (McCauley's adni'r v.) Walk. 307. V. Terrell, Walk. 327. Markham(Calvit'sex'r«.)3How. 343. V. Calvit's ex'r, 5 How. 247. ■ ■ . — V. Merritt, 7 How. 437. Marlow v. Hamer, 6 How. 189. (Pickens v.) 2 S. & M. 428. Marsh v. Bennett, 6 How. 215. V. Williams, 1 How. 132. Marshall v. Pulgham, 4 How. 216. (Grimball v.)3 S. & M. 359. D.Morton. IS. &M.Ch. 563. Martin & Bell (Cable v.) 1 How. 558. ■ V. Broadus, Freem. Ch. 35. (Cook V.) 5 S. & M. 359. (Ellis V.) 2 S. & M. 187. (Hargrove v.) 6 S. & M. 61. V. Martin, Pleasants & Co. 1 S. & M. 176. — (Wolfe & George v.) 1 How. 30. (Pintard».)lS.&M.Ch. 126. Pleasants & Co. ». Glasscock, Freem. Ch. 17. Massey (McAdams v.) 1 S. &M. 660. Massingill (McKiernan v.) 6 S. & M. 375. Matchell (Taylor v.) 1 How. 596. Mather (Stark's heirs v.) Walk. 181. Mathews w. Patterson, 3 How. 729. Matlock V. Calhoun, 3 How. 70. Mattheny v. Totten, 2 S. & M. 52. Matthews (Nevill v.) Walk. 377. Mauldingv. Rigby, 1 How. 579. V. Rigby, 4 How. 222. ■ (Vick'sex'rj).) IHow. 217. Maury v. Com. Bank of Natchez, 5 S. &M.41. -~^-v. Jeffers, 4 S. & M. 87. May (Kain v.) 5 S. & M. 368. May V. Rose, Freem. Ch. 703. — '■ — 1& wife (Woodward «.) 4 How. 389. Mayor of Vicksburg (Vick & Rappley V.) 1 How. 379. Mayson's adm'r (Goode v.) 6 How. 543. i). Land, 5 How. 11. McAdams v. Massey, 1 S. & M. 660. McAfee v. Keirn, 7 S. &. M. 780. V. Patterson, 2 S. & M. 593. McAnulty v. Bingaman, 6 How. .382. McCaleb (Freeland v.) 2 How. 756. McCargo (Collins v.) 6 S. & M. 128. McCarroU (Gwin v.) 1 S. & M. 351. McCaughan (Weems v.) 7 S. & M. 422. McCauley's adm'r v. Mardis, Walk. 307. . McCleod (Tutt's adm'r v.) 3 How. 223. (Poole u.) I'S. &M. 391. McComas & wife v. Minor, Walk. 513. McCoy V. Nichols, 4 How. 31. J). Rives, IS. & M. 592. V. Rhodes, 7 S. & M. 296. McCrea v. Walker, 4, How. 455. McCreary & wife (Callendei v.) 4 How. 356. McDaniel (Rogers v.) 3 How. 172. (Vicks V.) 3 How. 337. McDonald (Puckett «.) 6 How. 269. & Rogers (Lowry & Puok- ett V.) 1 S. & M. Ch. 620. McDowell «. Cook 6 S. &. M. 420. (Sanders «.) 4 How. 9. (Walker ».) 4 S. &M. 118; McDougall (Russell v.) 3 S. & M. 234. McDugald V. Union Bank, 6 S. & M. 333. McBlroy (Wilson v.) 2 S. & M. 241. McErwin v. The State, 3 S. & M. 120. McFarlan v. Smith, Walk. 172. McFarland v. Wilson, 2 S. & M. 269. McGahy (Hubert v.) Walk. 246. McGahey (Jones v.) 1 How. 128. McGaughy (Bennett v.) 3 How. 193. MoGee v. Ford, 5 S. & M. 764. (Baines v.) 1 S. & M. 208. McGehe v. Handley 5 How. 626. TABLE OF CASES. 21 McGehee v. Caruthers, 2 S. & M. 443. (Fold & Baines v.) Freem. Ch. 460. McGill & Conn (Thompsons.) Freem. Ch. 401. McGilvry v. Jackson, 4 How. 345. McGimpsey (Montgomery v.) 7 S. & M. 557. McGinley (Bone v.) 7 How. 671. McGraw v. Pulling, Freem. Ch. 357. (State V.) Walk, 209. McGruder (Duggen v.) Walk. 112. McGufFey v. Planters Bank, Freem. Ch. 383. Mclntire v. Agricultural Bank, Freem. Ch. 105. V. Ledyard, Hatter & Co. 1 S. &M. Ch. 91. ■.V. Weathersby & Cameron, 1 How. 331. ■ V. White, 5 How. 298. McKay (Spear's ^drn'rw.) Walk. 265. McKie (Moore v.) 5 S. & M. 238. McKeirnan «. Massingill, 6 S. & M. 375. V. Patrick, 4 How. 333. McKinstry (Dean «.) 2 S. &. M. 213. McLaughlin v. Clarke, Freem. Ch. 385. (Southard & Bowles ».) Walk. 305. McLaurin (Bird v.) 4 S. & M. 50. McLeod & wife v. Tutt, 1 How. 288. McMillan v. Sprague, 4 How. 647. McMurran (Vertner & wife«.) Freem. Ch. 136. V. Soria, 4 How. 154. McMurtry (Black & Pratt v.) Walk. 389. McNiece (Carraway v.) Walk. 538. McNiell V. Burton, 1 How. 510. (Fisk & McNiell u.) 1 How. .535. McNuttii. Livingston, 7 S. & M.641. (Gov.) (Parmilee«.) 1 S. & M. 179. 776. (Wilcox & Fearne ».) 2 How. ■ V. Wilcox, 3 How. 417. V. Wilcox & Fearne, Freem. Ch. 116. McPherson v. Barnes, Walk. 375. McRae (Terral v.) 6 S. & M. 136. McRaven v. Forbes, 6 How. 569. McRaven (Stubblefield v.) 5 S. & M. 130. Meade v. Thompson, Walk. 450. Mears (Copeland v.) 2 S. & M. 519. & Walker c. Winslow, 1 S. & M.Ch. 449. Meek (Newman & Beck v.) Freem. Ch. 441. (Newman w.) 1 S.&M. Ch.331. Mellen (Prentiss v.) 1 S. & M. 521. Mellon V. Breckenridge 1 How. 273. Melmoth (Gwin v.) Freem. Ch. 505. Melton V. Howard, 7 How. 103. Mentor v. Stewart, 2 How. 698. Mercer i'. Stark, Walk. 451. —^ — (Parker u.) 6 How. 320. (Stark V.) 3 How. 377. V. Starke, 1 S. & M. Ch. 479. Merchants Bank of N. Y. (Kershaw V.) 7 How. 386. Meredith (Felder v.) Walk. 447. Merrick v. Henderson, 7 How. 485. Merrill v. Bell, 6 S. & M. 730. V. Legrand, 1 How. 150. Merrit (Biggam v.) Walk. 430. (Hyde & Merrit v.) Walk. 430. Mertitt (Dorsey v.) 6 How. 498. V. Vance, 6 How. 390. (Markham v.) 7 How. 437. Michie (Minor v.) Walk. 24. V. Planters Bank, 4 How. 130. Mickell (Moore v.) Walk. 231. Middleton (Guise v.) 1 S. & M. Ch. 89. (Turnbull v.) Walk. 413. (Whitehead u.)2How.692. Mikell (Davis V.) Freem. Ch. 548. Miles (Jones v.) 1 How. 50. Miller (Anderson v.) 7 S. & M. 586. V. Brooks, 4 S. & M. 175. V. Gaskins, 1 S. & M. Ch. 524. ■ V. Helm, 3 S. & M. 687. V. Owen, Walk. 244. -iJ.Patton, 3 S. & M. 463. — V. State, 5 How. 250. (Thomas v.) Walk. 324. V. Trustees of Jeff. Col. 5 S. & M. 651. V. Womack, Freem. Ch. 486. (Wooten V.) 7 S. & M. 380. ■ & Nelder v. Doxey, Walk^ 239. 22 TABLE OF CASES. Milliken (Montgomery «.) 1 S. & M. Ch. 495. ■ (Montgomery v.) 5 S. & M. 151. Mills (Holt u.) 4 S. &M. 110. Millsaps (Duckworth v.) 7 S. & M. 308. Mims (Ross V.) 7 S. & M. 121. Mingo & Allen v. Goodman, 1 How. 553. Minis (Hutchinson v.) 7 S. & M. 388. Minor v. City of Natchez, 4 S. & M. '602. (Davis V.) 1 How. 183. (McComas v.) Walk. 513. V. Michie, Walk. 24. (Shsffer V.) 1 How. 218. V. Stewart, 2 How. 912. (Torrey v.) 1 S. & M. Ch. 489. Mississippi & Alabama Railroad Co. v. Ballard, 5 S. & M. 606. Mississippi & Alabama Railroad Co. (Garr6ttD.).Freem. Ch. 70. Mississippi & Alabama Railroad Co. (Graves v.) 6 How. 548. Mississippi & Alabama Railroad Co. (Grimball v.) 3 S. & M. 38. Mississippi & Alabama .Railroad Co. (Smith?).) 6 S. & M. 179. Mississippi Railroad' Co. v. Scott, 7 How. 79. Mississippi Union Bank (Hendersons.) 6 S. & M. 314. ■^-- — :r^. r — (Heyfron v,) 7 S. & M. 434. Mitchell (Ayres v.) 3 S. & M. 683. n — : — r-r V. Evaus, 5 How. 548. , ^ V. Fearn, 3 How'. 123. . . V. Hewett, 5 S, & M. 361. . rr 17. Sherman, Freem. Ch. 120. .^ (Watt v.)6 How. 131. (Wilcox V.) 4 S. & M. 744. Mobley v. Lombat, 7 How. 318. Moffitt (Russell V.) 6 How. 303. Monet (Graves v) 7 S. & M. 45. Money (Collins v.) i How. 11. V. Dorsey, 7 S, & M. 15. Montgomery (Bell v.yi How. 39. — :- V. Com. Bank of Rodney, 1 S. & M. Ch. 639. — : V. Com'rs. of the •Sinking Fund, 7 How. 13. ■ V. Dillingham, 3 S. & M. Montgomery (Hoggatt v.) 6 How. 303. ■ (Irving V.) 3 How. 191. (Lee V.) Walk. 109. V. McGimpsey, 7 S. & M. 557. Ch. 495. Milliken, 1 S. & M. -u. Millikin,5S.&M. 151, - V. Norris, 1 How. 499. - V. The Governor, 7 How. 68. — ■■ V. Tillottson, 1 How. 215. ; — & Norris v. Griffiii, Walk. 453. Moody (Dickson v.) 2 S. & M. 17. V. Farr, 6 S. & M. 100. 647. Moor (State v.) Walk. 134. Moore v. Anderson, 3 S. & M. 321. V. Ayres, 5 S. & M. 310. V. Brungard, 5 How. 557. V. Caldwell, Freem. Ch. 222. J). Carson, 1 How. 53. ^ (Haydon v.) 1 S. & M. 605. (Holloway «.) 4 S. & M. 594. V. Judge of Probate, Walk. 310. V. McKie, 5 S. & M. 238. V. Mickell, Walk. 231. (Smith V.) 3 How. 40. V. Vick, 2 flow. 746. Ex parte, 7 How. 669. Moore's heirs (Merrill v.) 7 How. 271. Morehead v. HoUiday, 1 S. & M. 625, Moreland (Pearson d.) 7 S. & M. 609. Morgan & Fitz (Latham v.) 1 S. & M. Ch. 611, V. Reading, 3 S. & M. 366. Morris (Davidson v.) 5 S. & M. 564. -■ V. Dillard, 4 S. & M. 636. (Leggett V.) 6 S. & M. 723, Morrison v, Ives, 4 S. & M. 652. Morse (Field v.) 1 S. & M.- 347. — (Saunders v.) 3 How. 101, Morton v. Jackson, 1 S. & M. 494. (Marshall v.) 1 S. & M. Ch, 563. V. Simmons, 2 S. & M. 601. . V. Walker, 7 How. 554. Mosby (Peques v.) 7 S. & M. 340. Moseby v. Williams, 5 How. 520. Mossi), Agricultural Bank, 4 S. & M, 726. V. Davidson, 1 S &. M. 112. (Glass V.) 1 How. 519. (Peters v.) 1 S. & M, 331. -.™. V. State, § How, §98, TABLE OF CASES. 23 Molz (Harrison v.) 5 S. & M. 578. MountK. Harris, 1 S. & M. 185. V. State, 7 S. & M. 277. Muirhead v. Muirhead, 6 S. & M. 451. MuUej V. Jelks, Walk. 205. Mance (Rutherford v.) Walk. 370; Munford (Lake*,) 4 S. & M. 312. Munn V. Perkins, 1 S. & M. 412. Munson (Adams v.) 3 How. 77. Murdock"«. Hughes, 7 S. & M. 219. V. Washburn, 1 S. & M. 546. Murphy ■!). Clark, 1 S. & M. 221. (Hick V.) Walk. 66. Murrah (Sadler v.) 3 How. 195. Myers (Emmons v.) If How. 375. (Miles 1).) Walk. 379. V. Oglesby, 6 How. 46. (Pritchard v.) 3 S. & M. 42. N. Nash (Sims v.) J, How. 271. Natchez Ins. Co. v. Buckner, 1 How. 63. , President and Selectmen of, (O'Conly I).) 1 S. & M. 31. ■ S. B. Co. (Smith v.) 1 How. 479. ' Ins , Co. V. Stanton, 4 How. 7. Ins Co. V. Stanton, Buckner & Co. 2 S. & M. 340. Nations v. Alvis, 5 S. & M. 338. Nayler v. Payne, 1 S. &. M. Ch. 26. Neal V. Sanderson, 2 S. & M. 572. NeeleyK, Planters Bank, 4 S. & M. 113. (Planters Bank v.) 7 How. 50. Neibert v. Withers, I §. & M; Ch. 599. Neilson v. Holmes, Walk. 261. Nesbit (Bar'ringer «.) 1 S. & M. 22. Netterville & Boyd v. Stevens & Pil- lett, 2 How. 642. Nevill V. Matlheivs, Walk. 377. Nevit V. Hamer,5 S. & M. 145. Nevitt V. Bank of Port Gibson, Freem. Ch. 438'. ' ' ' V. Bank of Port Gibson, 6 S. & M. 513. - V. Gillespie, 1 How. 108. V. Natchez S. Packet Co. How. 196. V. Rafe, 5 How. 653. (Smith V.) Walk. 370. Newell V. Briggs, 3 How. 45. — & Pierce v. ilamer, 4 How. (Wellons V.) 7 S. & M. 399. 684. Newman (Dunn v.) 7 How. 582. V. Foster's heirs, 3 How. 383. —. (Gibson v.) 1 How. 341. V. Harris & Plummer, 4 How. 522. Newman (Harris v.) 3,S. & M..565. (Hooper & Bpgart v.) 2 S. & ■ & Beck V. Meek, Freem..Ch. M.71. , 441. V. Meek, 1 S & M. Ch. 331. V. Montgomery, 5 How. 742. Newton (Stamps v.) 3 How. 34. Niblett (Gibson's heirs «.) 1 S. & M. Ch. 278. Nichols (Chewning v.) 1 S. & M. Ch. 122. & Cobler v. Daniels's adm'r. Walk. 224. V. Mann, 1 S. & M. 257. (McCoy li.) 4 How. 31. Nicholson (Fle8son v.) Walk. 247. (Stockett V.) Walk. 75. j;. Stockett, Walk. 67. Nilesu. Anderson, 5 How. 365. Nixon V. State, 2 S. & M. 497. Nobler v. Christmas, 2 How. 885." Noe V. State, 4 How. 330. Nolan (Com. Bank of Manchester^).) 7 How. 508. Noland (Hazlip v.) 6 S. & M. 294. Nolen (Smith v.) 2 How. 735. Noonan v. State, 1 S. & M. 562. Norcum'(Manual v.) 7 How, 150. (Robins,!).) 4 S. & M. 332. Norman (Warren v.) Walk. 387. Norris (Montgomery v.) 1 How. 499. (Warbington v.) 3 How. 227 North (Simmons v.) 3 S. & M. 67. Northern Bank of Miss. j). Kyle, 7 How. 360'. ;- (Williams ti.) 7 S. & M. 28. Nutt V. Hunt, 4,S. & M. 702. B. Nutt, Freem. Ch. 128. Nye (Reynolds v.) Freem. Ch. 462. 24 TABLE OF CASES. 0. Oakeyw. Rahb'sexr's, Freem. Ch. 546. V. Wilcox, 3 How. 330. O'Conley v. Natchez (President & Sal. of) 1 S. & M.31. Odam (Townsend v.) Walk. 356. OflScers of Court v. Bank of Port Gib- son, 4 S. & M. 431. _ V. Fisk, 7 How. 403. Oflitt ti. Vick, Walk. 99. Offutti). Bowen, Walk. 545. Offdenw. Glidewell, 5 How. 179. , Oglesby (Myers v.) 6 How. 46. Oldenheimer (Rowan «.) 5 S. & M. 44. Oldham (Brown v.) Walk. 483. V. Ledbetter, 1 How. 43. Olivers. The Siate, 5 How. 14. Oneal (Richardson v.) Walk. 469. O'Neal (Cobb & M'Castle v.) 1 How. 581. Oppelt (Williams v.) 1 S. & M 559. O'Reilly v. Hendricks 2 S. & M. 3B8. Orne & By bee (Bay less v.) Freem. Ch. 161. (DoIIahite v.) 2 S. & M. 590. (Leftwich v.) Freem. Ch. 207. V. Sullivan, 3 How. 161. Osgood & Co. V. Brown, Meeks & Flournoy, Freem. Ch. 392. (Carleton v.) 6 How. 285. Overaker v. The State, 4 S. & M. 738. Overstreet v. The Stale, 3 How. 328. Owen V. Little & Snider, Walk. 326. (Buckineham ?>.) 6 S. & M. 502. Owens (Miller ».) Walk. 244. (Wilson v.)l How. 126. Pack (Harney v.) 4 S. & M. 229. Pagaud V. The State, 5 S. & M. 491. Page J). Ford, 2 S. & ^. 266. Fallen V. Agricultural Bank, Freem. Ch. 419. Palmer K. Cross, 1 S. & M. 48. Paiham v. Randolph, 4 How. 435. c& Gibson, (Former «.) 8 S. & M. 151. ■V. Harney, 6 S. & M. 55. Parish & Co. v. Lewis, Freem. Ch. 299. Park V. Whiting's adm'r, 6 How. 352. Parker (Cottony.) 1 S. &M. Ch. 125, 191. (Dickson v.) 3 How. 219. (Gordon v.) 2 S. & M. 485. V. Mercer, 6 How. 320. V. Person, IS. & M. Ch. 76. — I (Robinson v.) 3 S. & M. 114. Parkes (Berry w.) 3 S. & M. 625. , Parkhurst v. Dunlap, 6 How. f???. Parkinson v. Waldron, 7 S. & M. 189. Parmilee v. McNutt, 1 S. & M. 179. Passo. Dykes, 8 S. & M. Pale (Copeland v.) 6 How. 275. Patrick (Anderson v.) 7 How. 437. ■ V. Beazley, 6 How. 609. Patrick (Comm'rs Sinking Fund ».) 1 s. & M.Ch. no. (Frost V.) 3 S. & M. 783. V. McKernon, 5 How. 678. (McKiernan v.) 4 How. 333. Patterson v. Denton, 1 S. & M. Ch. 592. (Mathews v.) 2 How. 729. (McAfesD.) 2 S. & M. 593. (Wells V.) 7 How. 347. & Tyler«. Phillips, 1 How. ■ (Wilkinson v.) 6 How. 19^. 572. Patton (Miller v.) 3 S. & M. 463. Payne v. Baldwin, 3 S. & M. 661. V. Com'l Bank of Natchez, 6 S & M. 24. V. Cowan, 1 S. & M. Ch. 26. V. Nayler, 1 S. & M. Ch. 26. V. Stone, 7 S. & M. 367. Payson b. West, Walk. 515. Pearce i'. Furr, 2 S. & M. 54. V. Young, Walk. 259. (Wren v.) 4 S. & M. 91. Pearl i>. Conley, 7 S. & M. 35fi. Pearson v. Moreland, 7 S. & M. 609. Pease ti. Turner, 3 How. 375. TABLE OF CASES. 25 Peck V. CritcWow, 7 How. 243. V. Welbur, 7 How. 658. &.wife (Chewning v.) 6 How. 5i4. & wife V. Glass, 6 How, 195. & wife (Vick & Reading v.) 4 How. 407. Peebles (Scott v.) 2 S. & M. 546. Peqiies v. Mosby, 7 S. & M. 340. Pender v. Conn, 1 S. & M. 386. V. Felts, 2 S. & M. 535. Pendleton v. Pendleton, 6 S. & M. 448. Penrice v. Cocks, 1 How. 237. Percy (Vick i>.) 7 S. & M. 256. Perkins (Hough, v.) 2 How. 724. ■• (Munn V.) 1 S. & M. 412. Perry v. Clark, 5 How. 495. ^— V. Fox, (Clark v.) 4 How. 285. V. Randolph, 6 S. & M. 335. Person (Parks v.) 1 S. & M. Ch. 76. Peter (a slave) v. The State, 3 How. 433. (a slave) v. The State, 6 How. 326. (a slave) v. The State, 4 S. & M. 31. Peters (Lee v.) 1 S. & M. 503. , V. Moss, 1 S. & M. 331. Petit (Donoho v.) Walk. 440. Pelrie ( Wright «.) 1 S. & M. Ch. 282, 326. V. Wright, 6 S. & M. 647. Peyton & Haliday v. Scott. 2 How. 870. Pharris v. Conner, 3 S. & M. 87. Phebe v. Prince & Prince, Walk. 131. Philbrick v. Holloway, 6 How. 91. Phillips (Benjamin v.) I How. 285. ti. Chaney, 7 How. 250. V. Com. Bank of Manchester, 1 S. & M. 636. V. Lane, 4 How. 132. (Patterson & Tyler v.) 1 How. 572. 462. V. Saunderson, 1 S. & M. Ch. (Thomas v.) 4 S. & M. 358. (Washburn v.) 5 S. & M. 600. (Washburn «.)6 S. & M. 425. Phipps (Brown, Gov. v.) 6 S. & M. 51. Pickens ?;. Harper, 1 S. & M. Ch. 539. V. Marlow, 2 S. & M. 428. 3 Pickens (Sample «.) 1 S. &. M. Ch. 501. Pickett I). Pickett, Walk. 373. V. Pickett, 1 How. 267. V. Planters Bank, 5 S. & M. 470. Pickett's ex'rs. v. Ford, 4 How. 246. Pierson (Ives & Newell v.) Freem. Ch. 220. Pigott (Bradley v.) Walk. 348. Pinckard (Foster v.) 5 S. & M. 792. — (Halsey?;.) 6 How. 278. (Robins v.) 5 S. & M. 51. Pintard v. Martin, IS. & M. Ch. 126. Pipkin V. Hand, Morris, Jenkins & Steel, Freem. Ch. 254. Pitcher v. Armat, 5 How. 288. Piltman & G-win v. Planters Bank, 1 How. 527. Planters Bank (Andrews v.)TS.&M. 192. (Barlow v.) 7 How. 129. (Barnard u.) 4 How. 98. (Briggs, Lacoste & Co.j).) Freem. Ch. 574. - (Briscoe v.) 3 S. & M. 423. 609. 413. 727. Ch. 40. 261. 701. 165. 449. 397. -V. Cameron, 3 S. & M. -V. Calvit, 3 S. & M. 143. - V. Chewning; 5 IJow. - (Clairborne v.) 2 How. -V. Cou]son,6How. 395. -V. Courtney, 1 S. & M. -(Downs II.) 1 S. & M. - (Ellis u.) 7 How. 235. - (Grant v.) 4 How. 326. - (Green v.) 3 How. 43. - (Harris v.) 7 How. 346. "(Harris I!.) 4 S. & M. - (Johnson v.) 4 S. & M. ■V. Johnson, 7 S. & M, ■ (Lewisjj.) 3 How. 267. ■ (Lillard v.) 3 How. 78. ■ u. Markham, 5 How. 26 TABLE OF CASES. Plsmters Bank (McGufFey d.) Freem. Ch. 383. (Michie v.) 4 How. 138. — (Neely v.) 4 S. & M. 113^. 470. — (Neely v.) 7 How. 80. — (Pickett c.) 5 S. & M. 1 How. 537. 287. 17. 673. 305. 628. 503. M. 476. 409. (Eittman & Gwinn v.) ■ (Saunders ■«.) 2 S. & M. - II. Scott, 5 How. 246. - V. Sharp, 4 S. & M. -K.Sharp, 4 S. & M.75, - V. Snodgrass, 4 How. - (Sotiau.) 3 How. 46. - V. Spencer, 3 S. & M. -«.TheState,6S. &M. -D.State,7S. &M. 1-63. -V. Stockman, Freem. Ch. -(Thompson v.) 2 S. & -«. Walker, 3 S. & M. - (Washington v.) 1 How. 230. Poiindbxter (Dickson v.) Fireem. Ch. 721. V. Henderson, Walk. 176. — V. La Roche, 7 S. & M. 699. ■V. Turner, Walk. 349. (West v.), Walk. 303. Pomel V. Scranton, Walk. 406. Poole V. McLeod, 1 S. & M. 391. Pope «. Andrews, 1 S. & IT. Ch. 125. Pope V. Armstrong, 3 S. & M. 214. Porter v. Deterly, 1 S. & M. 163. (Fnrness v.) Walk. 442. ; V. Grisham, 3 How. 75. V. Johnson, 2 How. 736. V. Porter, 7 How. 106. Potter (Atchison v.) 6 S. & M. 120. II. Prescott, 2 How. 686. Powell V. Carbry, 4 S. & M. 86. (Gibson v.) 6 How. 60. V. Gibson, 5 S. & 1\^. 7^2. V. Powell, Freem. Ch. 134. (Powell t).) Freem. Ch. 134. Preira v. Silva., 4 S. & M. 735. Premiss v. Mellen, 1 S. & M. 521. Prescott (Potter v.) 2 How. 686. Prescott, Jones & Co. v. Francis, 4 S. & M. 633. Presler (Davis v.) 5 S. & M. 459. Prestige (Smith v.) 6 S. & M. 478. Prewiit V. Bennett,,? ^. & M. 101. Price (Rector t).) 3 How. 321. V. Sinclair, 5 S. & M. 254. Prim V. Kittridge, Walk. 390-. Prince & Prince (Phebe v.) Walk. - 131. Pritchard v. Myers, 3 S. & M. 42. Proby (Weatbersby v.) 1 How. 98. Prosser v. Leatherman'sadm'r,4How. 237. V. Yerby's ex'r, 1 How. 87. Prussell V. Knowles, 4 How. 90. Pryor (Davis «.) 6 S. & M. 114; Puckett V. Graves, 6 S. & JM 384. V. McDonald, 6 How. 269. V. Redman, 2 How. 688. V. Rogers, 1 S. & M. Ch: 620. Pulliam V. PuUiam, Freem. Ch. 348. Pulling, «. McGraw, Freem. Ch. 357. Punchard v. Rundell, 1 How. 508. Purvis V. Forbes, 5 How. 518. R. Rabb's ex'rs (Oakey v.) Freem. Ch. 546. Ragsdale v. Caldwell, 2 How. 930. Randall «. State, 4 S. & M. 349. Randblph (Chew & Relf «.) Walk 1. (Wiltburger v.) Walk. 20. Randolph v. Doss, 3 How. 205. (Parham v.) 4 How. 435. (Perry v.) 6 S. & M. 335. Raney & Girault (Williamson v.) Freem. Ch. 113. Rankin v. Butler, 2 S. & M. 473. TABLE OF CASES. 87 Rankin v. Holloway, 3 S. & M. 614. V. Sanders, 6 How. 52. (Young V.) A How. 27. Ranson v. Cothran, 6 S. & M. 167. Rapp (Fletcher y.) 1 S. & M. Ch. 374. Rappleye v. Hill. 4 How. 295. Ratcliff (Clark v.) 7 How. 162. Rauthw. Helm, 6 How. 127. Ray (Fitzpatrick v.) 4 S. & M. 645. V. Woolfolk, 1 S. & M. 523. Rayford v. Comstock, 1 S. & M. 423. Raymond (Thompson v.) 7 How. 186. Raymond Railroad Co. (Stewart «.) 7 S. & M. 568. Read v. Renaud, 6 S. & M. 79. (Wooten V.) 2 S. & M, 585. Reading (Morgan v.) 3 S. & M. 366. Reaves (Dennis v.) 6 S. & M. 89. Rector v. Price, 3 How. 321. Redman (Puckettu.) 2 How. 688. Redus V. Wofford, 4 S. & M. 579. Reed v. Benton & Manchester Rail- road & Banking Co. 4 How. 257. V. Cage, 4 How. 253. V. Carl, 3 S. & M. 74. (Delahufif v.) Walk. 74. V. Wiley, 5 S. & M. 394. Reeves v. Burnham, 3 How. 26. Regan v. Stone, 4 S. & M. 691. V. Stone, 7 S. & M. 104. Reily (Vanhouten v.) 6 S. & M. 440. Renaud (Read v.) 6 S. & M. 79. Renich (Carroll v.) 7 S. & M. 798. Reno (Harper 1).) Freem. Ch. 323. Rentfrow v. Shaw, 4 How. 651. Rester (Vickery v.) 4 How. 293. Reynolds (Barnes's ex'rs v.) 4 How. 114. (Grissom v.) 1 How. 570. V. Nye, Freem. Ch. 463. (Sessions v.) 7 S. & M. 130. Rhodes (Freeman v.) 3 S. & M. 329. (McCoy V.) 7 S. & M. 396. Richards (Dixon v.) 2 How. 771. (Miles V.) Walk. 477. Richardson v. Oneal, Walk. 469. — (Saunders v.) 2 S. & M. 90. V. Warwick, 7 How. 131. Richer (Stevens & Pillett v.) 1 How. 523. Richey (Johnson v.) 4 How. 233. Ridgeway v. Marshall, 5 How. 286. Rigby (Maulding v.) 1 How. 579. • (Maulding v.) 4 How. 222. Riggs V. Dycke, 2 S. & M 606. Right (Chance «., Walk. 156. Riley's adm'rs v. Ruffin's ex'rs, Walk. 425.* — V. Vanhouten, 4 How. 428. Rives (McCoy v.) 1 S. & M. 592. Roach (Irwin & Wright v.) Walk. 386. Roberts v. Bean, 5 S. & M. 590. (Davis V.) 1 S. & M. Ch. 543. (Edmundson v.) 1 How. 322. (Edmundson v.) 2 How. 822. V. Edmundson, 4 S. & M. 886, 730. (Edwards v.) 7 S. & M. 544. • & Phillips V. Haley, 2 How. (Gresham v.) 2 S. & M. 471. Robertson v. Banks, 1 S. & M. 666. — (Conger v.) Freem. Ch. 265. V. Haun, Freem. Ch. 265. V. Williams, 6 How. 579. Robeson (Hill v.) 2 S. & M. 541. Robins v. Embry, 1 S. & M. Ch. 207. V. Norcum, 4 S. & M. 332. V. Pinckard, 5 S. & M. 51 . (Terry v.) 5 S. & M. 291. Robinson (Conger v.) 4 S. & M. 210. (Green v.) 3 How, 105. V. Green, 6 How. 225^ — ; ^ — V. Francis, 7 How. 458. — '■ V. Parker, 3 S. & M: 114. V. Thompson, 1 S. & M. Ch. 454. : V. White, 7 S. & M. 39. (Wood D.) 3 S. & M. 271. Robson V. Benton & Manchester Rail- road & Banking Co. 7 S. & M. 724. Ex parte, Walk. 412. Rockhold V. The State, 5 How. 291. Rogers V. Galloway, 3 How. 58. (Lehr v.) 3 S. & M. 468. V. McDaniel, 3 How. 172, (Puckettj).) 1 S. & M. Ch. -, Slocumb & Co. (Hines v.) 620. Walk. 486. Rollins V. Callender, Freem. Ch. 395. Rose (Mays v.) Freem. Ch. 703. Ross V. Barland, Walk. 489. V. Duncan, Freem. Ch. 587. V. Garey, 7 Hovy. 47. 28 TABLE OF CA&ES. Ross V. Lane, 3 S. & M. 695. V. Mims, 7 S. & M. 121. V. Vertner, Freem. Ch. 587. V. Vertner, 5 How. 305. V. Wilson, 7 S. & M. 7*3. & Co. (Sevier^.) Freem. Ch. 519. Routh (Conner v.) 7 How. 170. Routh's heirs (Her v.) 3 How. 276. Rowan (Garland v.) 2 S. & M. 617. (James v.) 6 S. & M. 393. V. Olderiheimer, 5 S. & M. 44. & Harris v. Adams, 1 S. & M. Ch. 45. Rowe (Coleman v.) 4 S. & M. 747. Rowland (Bright v.) 3 How. 398. V. Gridley, 1 How. 210. V. Hoover, 2 How. 769. Rowley & Gauze v. Cunningham & Spyker, 1 S. & M. 340. Roysler (Houston v.) 7 How. 543. Royster (Hoaston v.) 1 S. & M. 238. Ruffin's ex'r (Vigneau v.) Walk. 312. exr's (Riley's adm'rs«.) Walk. 425. Rule V. Taylor, 4 S. & M. 577. Rulon (Cornell v.) 3 How. 54. V. Linton's heirs, 2 How. 891. Rundel (Punchard v.) 1 How. 508. Runnels i>. Jackson, 1 How. 358. (Smith «.) Walk. 144. V. Spencer & Lea, Walk. 362. V. Strongs, 2 How. 667. V. The State, Walk. 146. Rupertw. Grant, 6 S. & M. 433. Rushing v. Key, 4 S. &; M. 191. Russell (Ford v.) Freem. Ch. 42. (Ingraham v.) 3 How. 304. V. McDougall, 3 S. & M. 234. V. Moffitt, 6 How. 303. Rutherford «. Munce, Walk. 370. s. Sadler v. Murrah, 3 How. 195. Saffaraoas v. Bennett, 6 How. 277. Sale (Harriston v.) 6 S. & M. 634. Sample v. Pickens, 1 S. & M. Ch. 501. Sampsoji.w. Breed, Walk. 267. Sanders «. "Douglass, 3 S. & M. 454. (Dowell V.) 7 S. & M. 206. V. McDowell, 4 How. 9. (Rankin v.) 6 How. 52. Sanderson (Harmon v.) 6 S. & M. 41. Sandford v. Campbell, 7 S. &M. 107. Saunders (Carter v.) 2 How. 851. V. Erwin, 2 How. 732. (Morse V.) 3 How. 101. -' v. Planters Bank, 2 S. & M. 287. 90. -V. Richardson, 2 S. & M. Saunderson (Neal v.) 2 S. & M. 572. (Phillips V.) 1 S. & M. Ch. 462. Scanland (Kerningham v.) 6 How. 540. School Lands, Trustees of, (Carmi- chael V.) 3 How. 84. Scott V. Calvit,'3 How. 148. (Fitch V.) 3 How. 314. —^ V. Freeland, 7 S. & M. 409. Scott V. Hamblin, 3 S. & M. 285. V. James, 3 How. 307. (Keller v.) 2 S. & M. 81. (Mississippi Railroad Co. v.) 79. ■ V. Peebles. 2 S. & M. 546. (Peyton & Haliday v.) 2 How. 870. V. Searles, 5 S. & M. 25. (Searles v.) 6 S. & M. 246. ■ V. Searles, 7 S. & M. 498. V. Searles & Moore, 1 S. & M. 590. V. Watkins, 2 S. ' & M. 233, 255. & Robinson (Babcock, Gardner & Co. V.) 1 How. 100. Scranton (Pomet v.) Walk. 406. Scudderti. Seals, Walk. 154. Searles (Scott v.) 5 S. & M. 25. V. Scott, 6 S. & M. 246. (Scott V.) 7 S. & M. 498. & Moore (Scott v.) 1 S. & M. 590. Seawell (Kirk v.) 2 S. & M. 571. Selcer (Ferriday v.) Freem. Ch. 258. Sellers Ex parte. Walk. 414. Selser (Ferriday v.) 4 How. 506. V. Wilkinson, Walk. 108. Seltzer v. Fuller, 6 S. & M. 185. TABLE OF CASES. 29 Serpentine v. State, 1 How. 256. Sessions (Bingham v.) 6 S. & M. 13. V. Jones, 6 "How. 123. v. Reynolds, 7 S. & M. 130. Sevier (Ross & Co.) Freem. Gh.519. Shackleford (Landsdalew.) Walli;. 149. (Trahern v.) 3 How. 73. Siiaeffer^. Minor, 1 How. 218. Shaffer v. State, 1 How. 238. Shanks (Chambliss v.) Walk. 249. Sharkey (Hageman v.) 1 How. 277. Sharp, John, (Planters Bank v.) 4 S. & M. 75. , ThomasL. (Planters Bank d.) 4 S. & M. 17. Shattuck «j.. Young, 2 S. & M. 30. Shaw (Renlfroww.) 4 How. 651. V. Thompson, 1 S. & M. Ch. 628. Shelby (Thompson v.) 3 S. & M. 296. Shell (Heckingbottom v.) 3 S. & M. 588. Shelton (Wright v.) 1 S. «& M. Ch. 399. Sherman (Mitchell v.) Freem. Ch. 120. Shields v. Graves, 6 How. 262. Shipp (Smith & Pickett v.) 1 How. 234. • (Wells V.) Walk. 353. Shirtliff V. Witherspoon, 1 S. & M. 613. Shoape & Martin (Love v.) Walk. 508. Shotwell V. Shotwell, 1 S. & M. Ch 51. Shroek v. Browder, 4 How. 426. (Laineu.) Walk. 316. Shropshire v. Judge of Probate of Amite County, 4 How. 142. Silva (Preira v.) 4 S. & M. 735. Simmons v. Henderson, Freem. Ch. 493. V. Lard, Valk- 159. (Leggettv.) 7 S. & M. 348. (Morton v.) 2 S. & M. 601. D. North, 3 S. &M.67. - V. Union Bank, 3 S. & M. 781. & Harper (Wright v.) I S. & M. 389. Sims v. Hundley, 2 How. 896. V. Nash, iHow. 271. (Stilwell V.) 3 How. 196. 3* Sims V. Wilkins, 5 S. & M. 234. Sinclair (Price v.) 5 S. & M. 254. (TownleysJ.) 3 How. 324. Singleton (Davis v.) 2 How. 673. (Lewis V.) Walk. 251. Sisloff (Lasley v.) 7 How. 147. Sitler & Johnson v. Walker, Freem. Ch. 77. Skinner v. Collier, 4 How. 396. Slater (Englehard v.) 7 How. 538. Smart v. Whaley, 6 S. & M. 308. Smiley (Courtney v.) Walk. 497. (Gaines v.) 7 S. & M. 53. Smith (Alexander v.) 4 S. & M. 258. (Bealty v.) 2 S. & M. 567. V. Berry, 1 S. & M. 321. (Boush V.) 2 S. & M. 512. V. Bradley, 6 S. &M. 179. V. Cohea, 3 How. 35. V. Com. Bank of Rodney, 6 S. & M. 83. V. Denson, 2 S. & M. 326. (Dillahunty v.) 7 How. 673. V. Elder, 7 S. &M. 507. (Enos».)7 S. &M.85. V. Everly, 4 How. 178. (Flourney v.) 3 How. 63. V. Gibbs, 2 S. & M. 479. V. Halfacre, 6 How. 582. (Hardy v.) 3 S. & M. 316. (Helmw.) 2 S. &M. 403. — (Houston 17^ 2 S. & M. 597. V. Hurd, 7 How. 188. (Kelsey v.) I How. 68. (McVarland v.) Walk. 172. ■ V. Mississippi & Alabama Rail- road Co. 6 S. & M. 179. V. Moore, 3 How. 40. ■ V. Natchez S. B. Co. 1 How. 479. V. Nevitt, Walk. 370. a. Nolen,2How. 735. V. Prestige, 6 S. & M. 478. V. Runnels, Walk. 144. (Smith's adm'r v.) 1 How. 102. V. Smith's adm'r, 3 How. 316. — — ». Tupper, 4 S. & M. 261. V. Walker, 1 S. & M. Ch. 432. V. Warren, 2 How. 895. (Whitton & Halbut v.) Freem. Ch.231. & Montgomery v. Winston & Lawson, 2 How. 601. & Pickett V. Shipp, 1 Kow- 234. 30 TABLE OF CASES. Snodgrass (Hendricks v.) Walk. 86. (Planters Bank v.) i How. 573. Soria (McMurran v.) 4 How. 154; V. Planters Bank, 3 How. 46. Sorsby (Taylor i;.) Walk. 97. Southard & Bowles v. McLaughlin, Walk. 325. Spain V. Winter, Walk. 153. Span's adm'r (Wren's adm'r«.) 1 How. 115. Spear v. King, 6 S. & M. 976. Spears (Collins v.) Walk. 310. V. McKay, Walk. 265. Speight V. Adams, Freem. Ch. 318. Speight's ex'r tj. Brock, Freem. Ch. 389. Spencer (Carter v.) 4 How. 43. (Planters Bank e.) 3 S. & M. 316. 363. & Lea (Runnels v.) Walk. Sprague (McMillan v.) 4 How. 647. Sprawles v. Barnes, 1 S. & M. 639. Spring (Witherspoon v.) 3 How. 60. Sproul (Harer.) 3 How. 773. Stacy V. Barker, 1 S. & M. Ch. 112. Stamps (Archer & Watson v.) 4 S. & M. 353. V. Bush, 7 How. 255. (Fitch V.) 6 How. 487. V. Newton, 3 How. 34. & Moore v. Bracy, 1 How. 312. Stanton (Burns v.) 2 S. & M 457. (Natchez Ins. Co. v.) 4 How. 7.' V. Natchez Ins. Co. 5 How. 744. , Buckner & Co. (Natchez Ins. Co. i;.)2S.&M. 340. Stark 1). Mercer, 3 How. 379. (Mercer v.) 1 S. & M. Ch. 479. Starke (Dulaney v.) 7 S. & M. 375. (Gildart's heirs v.) 1 How. 450. 267. . V. Gildart & Morris, 4 How State V. Anderson, 3 S. & M. 751. V. Bank of Port Gibson, 4 S. & M. 439. V. Blennerhassett, Walk. 7. (Bradley v.) Walk. 156. (Bryant v.) 1 How. 351. ti. Bush, Walk. 265. Stale (Byrd v.) 1 How. 163, 247, (Carpenter v.) 5 How. 163.» V. Chace, Walk. 384. (Cody V.) 3 How. 27. — — V. Commissioners, &c. Walk, 368. (Com. Bank of Manchester v.) 4 S. & M. 439. V. Com. Bank of Manchester, 5 S. &M. 218. (Com. Bank of Natchez ti.) 6 S. & M. 599. (Com. Bank of Rodney v.) 4 S. & M. 439. V. Craft, Walk. 409, 537. (Daingerfield v.) 5 How. 658. (Bamewood v.) 1 How. 262. (Davis V.) 6 How. 399. (Dean v.) 3 S. & M. 200. (Dominges t>.) 7 S. & M. 475, V. Doty, Walk. 230. (Dowling V.) 5 S. & M. 664. (Farrish v.) 5 How. 170. (Farrish v.) 2 How. 826. V. Flower, Walk. 308. (Friar z).) 3 Hew. 422. ■ (Goodwyn v.) 4 S. & M. 520. V. Grand Gulf Bank, 4 S. Sz. M. 439. (Hare v.) 5 How. 187. V. Holmes, Walk. 414. — — (Isham, a slave v.) 6 How. 35, (Jack V.) 6 S. & M. 494. - V. Johnson, Walk. 393. (Johnston v.) 7 S. & M. 58. (Kelley v.) 3 S. & M. 518. (Kliffield V.) 5 How. 304. (Longacre v.) 3 How. 637. (Loperw.) 3 How. 429. (McErwin v.) 3 S. & M. 120. V. McGraw, Walk. 208. V. Moor, Walk. 134. (Moss V.) 6 How. 398. (Mount V.) 7 S. & M. 277. (Nixon V.) 3 S. & M. 497. (Noe V.) 5 How. 330. (Noonan v.) 1 S. & M. 562. (Overaker v.) 4 S. & M. 738. (Overstreet v.) 3 How. 328. (Pagaud B.) 5 S. & M. 491. for the char- acter of account which the statute requires the plaintiff shall file with his suit. 9. An action of assumpsit for money had and received, cannot be maintained against a party to recover the amount of notes of third persons, and open accounts and officers' receipts left with the defendant for collection by the plaintiff, without proof that the de- fendant actually received the mo- ney from them. Fox v. Fisk, 6 How. 328. 10. Where a sum of money is by mistake of an agent of the holder, credited on a note, and the holder of the note, supposing it paid, delivers it up to the maker, such agent who has made the mistake,' and has been compelled to rectify it with the principal, may recover back from the maker, in an action for money had and received, the amount thus paid in mistake. Bank of Louisiana v. Ballard,! How. 371. 11. An action for money had and received will lie against a mere intruder or trespasser who has collected money which belong- ed to another; as where a party having no right to wharfage has, without authority, collected it, the true o'wner may sue him in as- sumpsit for it. O'Conley v. the City of Natchez, 1 S.'& M. 31. 12. Where profits have been re- ceived by injury done to real pro- perty, the owner may waive the trespass and sue in assumpsit, lb. 13. Under the money counts in assumpsit against a bank, the notes of such bank can be ofiered in evi- dence. Hughes V. Grand Gulf Bank, 2 S. & M. 115. 52 ASSUMPSIT. 14. In an action of indebitatus as- sumpsit for work and labor, against an administrat6r, the promise by the intestate was laid long after his death ; held, the time was imma- terial. Hill V. Robeson, 2 S. & M. 541. 15. See Contract, 48 ; a labor- er who has contracted to do a job, cannot abandon it and recover in assumpsit for what he has done. 16. In an action of assumpsit where the declaration-contains a special count, and also the common counts, so long as the special con- tract remaihs in force, the plaintiff cannot resort to the common counts, unless he fail altogether in proviiig the special contract, and then it must be such a transaction as would enable him to recover on the money counts, if theire had been no spe- cial contract ; but if there be any proof of the special contract, he cannot recover ; and where the contract is special and the payment of the money, and the delivery of the things sold are concurrent acts, it is incumbent on the party suing for the breach of the contract, to aver and prove his offer to perform his part .; but if the special contract has been rescinded by mutual con- sent, or abandoned by the defend- ant, an action may be maintained by the other party for money paid on the contract ; yet the abandon- ment of the contract must precede the action brought, for if the con- tract is in force at the trial the plaintiff cannot, at his option, aban- don the contract and sue for the money paid; where,' therefore, J. paid M. a certain sum in part pay- ment of his crops of cotton, and agreed to pay the balance on de- livery of the cotton, and M. ten- dered the cotton to J., and de- manded the residue of the price. which J. could not pay, when M. sold his cotton to a third party, whereupon J. sued M. to recover the sum he had paid on the cotton ; held, that J. oould not, at the trial, abandon the special count and re- cover on the common counts for money paid A. ; nor could he re- cover on the special count, without showing a readiness to pay for the cotton when delivered, but if M. had abandoned his part of the con- tract, before J.'s failure to com- ply, J. might sue for and recover back the money. Morrison v. Ives, 4 S. & M. 652. 17. An action of assumpsit upon an open account, is not embraced in the words action- on the- case, used in the statute H. & H. 572, §104, which provides that in all actions on the case &c., if the jury find under ten dollars the court shall not adjudge a greater amount of costs, except in the contingency provided by the statute. Fletcher v. Benbrook, 5 S. «fe M. 619. 18. Where a declaration con- tains a count upon a special con- tract, and also the common counts, and the plaintiff fails wholly in his right to recover on the special count, he may recover on the common counts, provided the case be such that if there had been no special contract, he might still have recov- ered under the common counts : where therefore G. brought an ac- tion against H. P. upon an award, by which, among other things, H. P. was directed to pay G. $1790 ; and the declaration also contained anoth- er count that H. P., in consideration that G. would deliver to him two notes made by H. P. and others, and owned by G., he (H.P.) would pay G. $1790, with the averment of the delivery of the notes to H. P.; AeZdjthat even though G. should ATTACHMENT. 53 fail in his count upon the award, on the ground that the award was void, he might still recover on the second count, if it was sustained by the proof. Gibson v. Powell, 5 S. & M. 712. 19. In an action by a physician to recover fees due him, it is not necessary that all the items of his account should be strictly proved ; where, however, the proof of the various items is not clearly made out the physician would strengthen his proof by showing that he kept correct books, and that the account was correctly copied from his books. Hazlip v. Leggett, 6 S. & M. 326. 20. L., a physician, sued G.'s ad- ministrators for medical services rendered G. extending from 1836 to 1842 ; and proved by Dr. 'M. that he (L.) had attended in the family of G. as physician during his (M.'s) absence, who was G.'s regular physician ; that he knows nothing of the particular visits or prescriptions charged, but had seen L. two or three times at the house of G. ; that he had heard G. in his lifetime frequently say that in the absence of witness he had employ- ed L. ; and he had two or three times been called in consultation with L. at G.'s house over some of his sick family ; held, the evidence was not sufficient to entitle L. to recover. Hazlip v. Leggett,6 S. & M. 826. ATTACHMENT. 1. See Judgment, 1. A judg- ment by attachment not evidence in ano.ther action. Chew v. Ran- dolph, Walk. 1. > 2. A judgment obtained in Lou- isiana by attachment, binds only the attached property. Woolfolk v. Cag-e, Walk. 301. 5* 3. A party may proceed by at- tachment in this state to recover damages for breach of covenant. lb. 4. See Garnishment, 2, 3 and 4 ; as to how far assignee of note is preferred to garnisheeing creditor ; and also the duty of garnishee to protect the rights of both parties ; and the effect of sale of attached property. 5. A justice of peace has no power to order attached property to be delivered to the plaintiff in the attachment ; such order will be void and no defence to an action of trover for the property. Welch v. Jamison, 1 How. 160. 6. An attachmg creditor cannot coerce payment of garnishee, with- out first executing a bond, accord- ing to the statute, and if the gar- nishee pay the attaching creditor without such bond it will be volun- tary and no bar to a suit on the original debt by the defendant in the attachment. Grissom v. Rey- nolds, 1 How. 570. 7. Where the party defendant to a suit on a note pleaded that he had paid it to an attaching creditor of the payee and issue was taken on the plea, held, that the plaintiff could show that the payment was impro- perly and illegally rnade. lb. 8. Where an attachment, perfect- ly regular on its face, was quashed by the court below, and the reasons for the quashal were not spread on the record, it will be presumed to have been properly done for matter deliors the record. Cobh v. O^Neal, 1 How. 581 ; Tyson v. Hamer, 2 How. 669. 9. The judgment against a gar- nishee is based on the proceeding in attachment, and on appeal from such a judgment this court will loftk into ,the regularity of the attach- 54 ATTACHMENT. ment proceedings. Berry v. Ander- son, 2 How. 649. 10. A judgment against a gar nishee, whose answer states an in' debtedness not due, without a stay of execution until the maturity of the debt, is irregular. lb. 11. It is no objection to a. judg- ment in attachment that the plaintiff therein hath not given the bond to restore the property as required by the statute ; as the statute requires the bond only after execution. lb. 12. Where the amount claim- ed by the' attaching creditor was $70 84, and the garnishee admitted an indebtedness of $98 37, a judg- ment in these words : " It is or- dered by the court that judgment final by default be entered against the garnishee for the amount of his answer or so much thereof as will satisfy the plaintiff's debt and costs, and that the plaintiff have execu- tion for the same," is void for un- certainty, lb. 13. An attachment process, with- out bond and affidavit, is absolutely void. Ford v. Hard, 4 S. & M, 683 ; and the defect is not cured 1 by the appearance and plea of the i defendant. Tyson v. Hamer, 2 I How. 669 ; and a judgment against I a garnishee under such attachment, who has answered, will be also void. i Fordv. Woodward,^ S. & M. 260 ; 1 and would be no bar to a subse- quent action against the garnishee for the same debt. Ford v. Hurd, 4 S. & M. 683. 14. An attachment for rent, with- out bond and security, by the land- lord, is erroneous. Cornell v. Ru- lon, 3 How. 54. * 15. See Seal, 1, for what suffi- cient seal to writ of attachment. 16. See Replevin, 4, as to wheth- er -the papers in attaclyiient for rent, need be returnable to the cir- cuit court ; and for proceedings on three months' replevin bond. • 17. Where the statutes in refer- ence to proceedings in attachment in one section provided that the at- tachment bond should be " condi- tioned for satisfying all costs which should be awarded the defendant, in case the plaintiff suing out the attachment should be cast in the suit, and also all damages which should be recovered against the plaintiff for wrongfully suing out the attachment," and in another) section the legislature prescribed! the form of the bond and its condi- ^ tion, which was that " if the plaintiff failed to prosecute his suit with effect he should well and truly pay and satisfy all such costs and dama- ges as should be awarded against him in any suit or suits which might thereafter be brought for wrongfully suing out the said attachment;" held, that the statutory bond must be fol- lowed, and attachment bonds not following it, but conditioned as in the first section, would be void. Mcln-, tyre v.§White, 5 How. 298 ; Amos V. Allnutt, 2 S. & M. 215. 18. It is not necessary for the agent, who takes out an attachment, to swear to the fact of his agency ; the certificate of the justice is suffi- cient evidence of it. Lindner v. Aaron, 5 How. 581. 19. It is not necessary that the citizenship of the plaintiff in the attachment should be stated in the record. lb. Foster v. Cook, 7 How. 357. The defence of non- residence should be made by plea, if it exist. Amos v. Allnutt, 2 S. & M. 215; 20. Where an attachment bond was signed by an agent, the court will not therefore quash the attach- ment ; it will presume the justice required legal authority to sign the ATTACHMENT. 55 bond ; the utmost to which the court would go in such case would be to make a rule upon the party to pro- duce the power of attorney in a reasonable time. lb. On mo- Tion to dismiss th6 attachment the court cannot look beyond the face of the bond itself; if therefore the bond be signed by A. as agent for tho' attaching creditor, and be ip other respects regular, the court will not, on the motion to dismiss, inquire into the agency of A. Spear Y. King, 6 S. & M. 276. 21. See Garnishment, 7 and 8; where debt garn'isheed is not due, and where partners are garnisheed and one only answers. ; 22. Where a defendant in an at- tachment has replevied property :' attached he may still move to quash the attachment, or he may file a plea in abatement ; but he must do so before, the time, when, by the rules of the court the issue must be made up ; by replevying the pro perty he acknowledges notice of the suit and is subject to be proceeded against as in other suits. Wilkin- son v. Patterson, 6 How. 193. 23. An aifidavit for an attach- ment against an absconding debtor, which alleges that the affiant has good grounds to believe and does believe that the defendant hath ab- sconded &c., is a sufficient com- pliance with the statute which uses the language, sp absconds, &c. ; the precise language of the statute need not be used. Wallis v. Wallace, 6 How. 254 ; the words " is iibout removing himself out of the limits of said state, so that,,8j-c., are suffi- cient, iee V. Peters, 1 S. &M. 503. 24. When oneji£jhg_JPembers of a firm acting for himself and his partners sues out an attachment against an absconding debtor, a bond signed by such partner^alone, with sureties, will be as valid as if "& all the partners had signed it. lb. 25. A jildgment in attachment againrst a non-resident will be erro- neous "iTrendered"^ before, publica- tion for six months. Saffaracus v. Bennett, 6 How. 277. 26. An affidavit in attachment \ must state that the defendant so ab- sconds that the ordinary process of ' the law cannot be served on him. * Thompson v. Raymon, 7 How. 186. 27. Where the defendant in at- tachment replevies the property by giving bond and' surety, the obligofs therein can only be made liable eit^6r by action of debt or scire facias on the bond. lb. 28. Afte* the defendant has re- plevied property attached and has suffered judgment to go by default against him he cannot object to de- fects, in the attachment itself. lb. 29. Wherei an attachment at law was sued out ' Jigainst two members of a firm, the third member not be- ing sued and persons were summon- ed as garnishees who answered ad- mitting an indebtedness to the firm generally, and it did not appear what were the respective shares of each partner ; held, that a judgment against the garnishees would be erroneous. , Mobley v. Lonbat, 7 How. 318. 30. Where an a gent for the plaint iff in attachment gives a bond inliis own name with sureties, bind- irigTiiniself~in3ivi3uafly' and not purportiiTg to biji3Tiis principal, it will be a good bond under the statute. Frost v. Cook, 7 How. 357 ; Page v. Ford, 2 S. (fe M. 266 ; yet it must appear either by the re- cit al in the b ond or the signature that__he acted as agent ; otherwise^,, the boncToT^ third party wijl^Min "uphoW'the 'attachment. Ford v. Hurdi 4 S. & M. 683. K 56 ATTACHMENT. 31. The act of 1840, vhich abolished imprisonment for debt, in effect repealed that portion of the attachment law, which required the defendant in an attachment, before he could discharge the attached pro- perty, to appear, give special bail and plead ; the necessity of giving special bail is dispensed with, and the defendant, by appearance and plea merely, will discharge the at- tached property. Garrett v. Tin- nen, 1 How. 465 ; Rowley v. Cum- mings, 1 S. & M. 340. 32. It seems that since the act of 1840, abolishing the taking of bail, &c. a special bail-bond in at- tachment for a debt due, is void. lb. Yet if, when an attachment is issued and levied, a third party ex- ecute a bond to the plaintiff in the attachment that if the defendant do not appear and pray the judg- ment of the court, he would, and the bond be designed as a contract to that effect between the parties, the obligee may recover thereon, but if it be designed as a special bail-bond he cannot recover. Eman- uel V. Laughlin, 3 S. & M. 342 ; and to an action on such a bond the plea that the defendant in attach- ment was amenable to the process of the court and was not arrested by ca. sa. is bad. lb. '33. Where the debt for the re- covery of which the attachment is sued out was not due, the statute on the subject provided that " if the debtor shall not on or before the re- turn of the attachment, enter into hmid with sufficient security for the payment of the debt when it be- comes payable," the court shall, on proof of the debt and of the inten- tion to remove, grant judgment ; and it also provided that such attach- ments should also be repleviable as in otKer cases of attachment. held, that the law of 1840 repealed the last proviso which authorized a replevy by giving special bail, and that therefore where there was an attachment for a debt not due, it could only be replevied by a bond to pay the debt when it was due, which could be given at any time before final judgment. iJ. 34. Where an attachment issues for a debt not due the - defendant should not be allowed to plead". un- til he has given bond for the pay- ment of the debt sued for. lb. 35. Where the statute allowed an attachment to issue on the affi- davit of the plaintiff that he had just cause to suspect and verily be- lieve that his debtor will remove &c. ; it was held to be a bad plea in abatement of the attachment that the defendant did not intend to re- move, lb. » 36. It seems that a plea in abate- ment in an attachment case will lie only for irregularity in the affidavit, the attachment process or the bond. lb. 37. See Evidence, 224 ; when surety in attachment bond compe- tent witness for plaintiff. 38. Under the statutes of this state a judgment creditor may gar- nishee the judgment debtor of his debtor ; it is no objection to the writ of garnishment, that the judg- ment debtor will be subject to two executions ; he has his remedy. Gray v. Henby, 1 S. & M. 598. 39. An attachment at law can- not be sued out in this state by a non-resident plaintiff against a non- resident defendant ; it is different -in chancery under a different statute. Hosey v. Ferriere, 1 S. «fe M. 663 ; but the defence must be made by plea ; the citizenship need not ap- ,peaf of record. Amos v. Allnutt, 2 S. & M. 215. ATTACHMENT. 57 40. The affidavit in attachment omitting the words " so that the or- dinary process of the law cannot be served on him " is fatally de- fective. Page V. Ford, 2 S. & M. 266. 41. An attachment is not vitiated because the signature of the credi- tor is not placed to the affidavit of the indebtedness of the defendant and his non-residence. Redus v. Wofford, 4 S. & M. 579. 42. Where the sheriff levies an attachment upon real estate and returns the writ executed, without setting forth the manner of the ser- vice or showing that he pursued the directions pointed out by the statute, it will be sufficient ; the court will presume the attachment to have been regularly executed. lb. 43. An attachment upon land is a lien from the time of its levy ; therefore in a controversy between a purchaser under an attachment sale and one under an execution sale of real estate of the same de- fendant in each proceeding, the purchaser at the attachment sale will take it if the levy of the at- tachment was anterior to the judg- ment under which the execution purchaser bought, even though the judgment in the attachment was junior. lb. 44. Afterjudgment on inquiry of damages, in an attachment suit, it will not affect the validity of the subsequent proceedings that the at tachment was for unliquidated dama- ges and the declaration in trover the defect is cured by the statute of jeofails, lb. 45. The statute requiring the plaintiff in attachment, or his agent, to give bond with sureties, is not complieirwith by the execution of a bond b y a single person, in no vraj^connected with the attach- ment. Ford v. Hurd, 4 S. & M. 683. 46. A- plaintiff in attachment who has given bond on suing out the attachment, obligating himself to pay the costs of the attachment suit, cannot be required to gives any other security for costs, until the surety in the bond shall be adjudged insufficient. House v. Bierne, 5 S. & M. 622. 47. An affidavit to procure an attachment, which avers that the debtor is concealing his goods, will not be vitiated by containing the reason of the creditor's belief of that fact ; therefore an affidavit that the debtor "had conveyed to his brother most of his tangible effects, was greatly in debt for goods pur- chased as a merchant ; that these debts were pressing him ; that he had conveyed these goods to his brother, a man of little property or responsibility, but lately come to the state, having no permanent re- sidence in it, and soon expected to leave ; that some of the goods had been boxed up, and the debtor and his brother contemplated moving themselves out of the state in a short time, and that by this means the debtor was concealing his effects so that the claim of the creditor would be defeated in the ordinary course of law," is sufficient. Spear v. King, 6 S. & M. 276. 48. An affidavit to procure an attachment, stating that the " de- fendants are concealing their effects so that the ordinary process of the law cannot be served on them, and that the claim against them will he defeated," &c. is sufficient. Love- lady V. Harkins, 6 S. & M. 412. 49. If the process in attachment, by mistake of the justice, recited that the plaintiffs were concealing their effects, &c., instead of the de- 58 ATTACHMENT. — ATTORNEY AT LAW. fendants, and the bond and aiBdavit contained correct recitals, the court will look to the whole record, and not construe it so as to defeat its own end. lb. 50. To authorize the issuance of an attachment against the property of a non-resident of this state, un- der the statute H. & H. 550, § 16, it is not necessary that the affidavit should state the actual place of re- sidence of the defendant ; it is suffi- cient if it state his non-residence and the impossibility to serve the ordinary process of law. James v. Dowell, 7 S. & M. 333. 51. In a case commenced by at- tachment the defendant has a right to plead in abatement, when he appears and replevies the property attached. lb. 52. A plea in abatement to at- tachment, which alleges that the defendant is a citizen of the State of Mississippi, but does not state that he resides in the county in which the suit is instituted, and thus show that the ordinary prqapss of the law could have been served on him, is bad. lb. 53. The pendency of one attach- ment may be pleaded in abatement of a subsequent attachment between the same parties, for the same cause of action, in the same county. lb. ATTACHMENTS IN CHAN- CERY. 1. The Statute on the subject of foreign attachments fully authoriz- es any creditor, with or without a judgment at law, who can bring himself within the provisions of the statute, to file his bill and obtain relief under the statute. Comstock V. Rayford, 1 S. & M. 422. 2. On a creditor's attaching bill under the foreign attachment law, the court cannot, at the filing of the bill, order an attachment to issue against the property in the hands of the resident defendant ; that order can only be made when the home defendant has been served with process and at the return term an affidavit is made of the absence of the other defendant ; the court may then make an order for the safe keeping of the effects and their production to answer the decree. lb. 3. A now-resident may sue out in chancery an attachment against a non-resident defendant ; but he cannot at law. Hosey v. Ferriere, 1 S. & M. 663 ; whenever the non- resident defendant has lands in this state, those lands may be proceeded against in the superior court of chancery in the mode pointed out by the statute, by a now-resident complainant, even though there be no home defendant ; but in such case the terms of the statute as to notice must be strictly complied with ; mere publication in the news- paper will not do, it must also be posted at the court house door ; and where the former only is done the bill will be dismissed without prejudice. Zecharie v. Bowers, 3 S. & M. 641. See Chancery, tit. Attachments in Chancery. ATTORNEY AT LAW. 1. An attorney at law, who, with- out express authority from his cU- ent, ccigipromises a claim for less than the- whole sum due, cannot be proceeded against by his client by motion, for the sum given up by the compromise ; the client must resort to another remedy ; — but if the at- ATTORNEY AT LAW. 59 torney in such case refuse to pay- over the money actually received unless the client will give a receipt in full for the whole claim, the client may recover, on motion, from the attorney the sum actually received. Lombard v. Wliiting, Walk. 229. 2. An attorney's receipt for the collection of money cannot be as- similated to a bill of exchange so as to require of the assignee de- mand and notice. Runnels v. Spen- cer, Walk. 362. 3. In an action on an attorney's receipt, the holder must show that the attorney had received the mo- ney by suit on the claim he had re- ceipted for, or that it had been lost by his omission or negligence. lb. 4. See Judgment, 14, as to pow- er to assign judgment. 5. Depositions in hand-writing of attorney not excluded. Donoho v. Petlit, Walk. 440. 6. See Waiver,!. How far ap- pearance by attorney, waiver of de- fect in process. 7. An attorney at law can only be moved against under the stat- ute for money actually collected ; if he take other notes and claims in satisfaction of his client's debt from the debtor, without authority, he will be liable, but not by motion. Banks v. Cage,'\ How. 293. 8. The high court of errors and appeals has power to strike the name of an attorney at law from the rolls for unprofessional conduct ; such as obliterating a record or an- tedating a writ to avoid the statute of limitations. Ex parte Brown, 1 How. 303. 9. The admissions by an attorney at law of payments made "to him, are binding on his client. Wenans V. Lindsay, 1 How. 577. 10. But the agreement of an at- torney tb credit his client's claim with a debt due by the attorney to the client's debtor, will not bind the client. lb. ■ 11. See New Trial, 16 and 17, when negligence of, ground for new trial. , 12. The attorney at law, who has obtaine4 a judgment on which the sherifFhas collected the money, can- not move against the sheriff in his own name, to compel him to pay over such money in discharge of general balances due the attorney as such by his client. Harney v. Demoss, 3 How. 174. 13. If an attorney at law neg- lect to bring a suit on a claim placed in his hands for collection, whereby the debt is lost, the attorney'will be liable for it. Fitch v. Scott, 3 How. 314. 14. An attorney at law has no authority to compromise the claim of his client ; and if he do so he . takes upon himself the consequen- ces of its loss or the damage his cli- ent may sustain. lb. So also he has no power to take an assignment of one judgment in satisfaction of another, without special authority. Clark V. Kingsland, I S. & M. 248. . 15. Where an attorney surren- ders up his client's claim to the debtor, the presumption of law, in the absence of proof to the contra- ry, will be, the total loss of the debt to the client. lb. 3 How. 314. 16. Where the justice of the case requires it, attorneys will be compelled to produce their author- ity for prosecuting the suit ; as where a suit was brought in the name of M. and A. against P., and P. made oath that the note sued on be- longed to M. alone, that A. had no interest in it, and that the suit was so brought to prevent an offset that P. had against M. ; held, that the attor- neys who brought the suit must show 60 ATTORNEY AT LAW. their authority from A. to join him 1 in the declaration. McKeirnan v. Patrick, 4 How. 333. A power of attorney from the plaintiff will be sufficient authority and discharge the rule. Anderson v. PalHck, 7 How. 347. 17. An act of the legislature prohibiting directors of banks from being attorneys in suits for such banks, is not a violation of the con- stitution securing to all persons the right to be heard in court by them- selves or counsel. West Feliciana Railroad Co. v. Johnson, 5 How. 273. 18. See Partners, 1 1 ; how far one partner in the practice of the law bound by notice to his co-part- ner. 19. It is error to strike an attor- ney from the roll without giving him notice of the proceeding, ac- tual or constructive. Ex parte Heyfron, 7 How. 127. 20. An attorney at law cannot enforce his lien on a decree for the payment of money rendered in the probate court, in that court; his lien must be elsewhere enforced. Clarice v. Ratcliffe,! How. 162. 21. An action for money had and received is not the proper remedy against an attorney for collecting depreciated bank notes ; case would be more appropriate. Kellogg v. Endlong, 7 How. 340. 22. An attorney at law is bound, in the absence of injunction, to pay over the money collected on execu- tion to the plaintiff in execution, and' if he fail to do so, and is moved against therefor, it will be no an- swer to the motion that he had re- ceived notice from a third person who claimed to own the money, not to pay it over to the plaintiff in ex- ecution. Dunn V. Vannerson, #7 How. 579. 23. An attorney at law has no lien upon a judgment obtained by him for anything but his fees in that particular suit ; he has no lien for general accounts. lb. ; or fees for services rendered in other ca- ses ; though perhaps he may have upon papers in his hands. Pope v. Armstrong, 3 S. & M. 214 ; Cage V. Wilkinson, 3 S. & M. 223. 24. An attorney at lavsr who has obtained a judgment for his client, is but the agent of his client and cannot by any instructions to the sheriff justify the sheriff in refus- ing to pay over money collected on execution to the plaintiff therein ; such attorney's fee being first paid. Dunn V. Newman, 7 How. 582 ; a payment to the attorney however will always discharge the sheriff unless he be positively prohibited from paying it to him. Butler v. Jones, 7 How. 587. 25. It is incompetent to prove a custom among the attorneys at law to take full and complete control over the business of- foreign clients and to exercise discretionary power in its settlement, in violation of prin- ciples of law, or contrary to the in- terests of their clients. Clark v. Kingsland, 1 S. & M. 248. 26. See Evidence, 225 ; when an attorney at la* under accept- ances for his client is competent witness for him. 27. An attorney at law, who has obtained a judgment in favor of his client against his own creditor, has no right, by an agreement with his creditor, to credit the ex- ecutor with the amount of his own indebtedness in discharge of that indebtedness ; such agreement is void; nothing but a -payment in money, without the consent of the plaintiff, will satisfy his execution. Keller v. Scott, 2 S. & M. 81. ATTORNEY AT LAW. 61 28. An attorney at law, has no right to take bank notes in pay- ment of an execution. Gasquet V. Warren, 2 S. & M. 514. See Execution, 25. 29. Where the name of an at- torney was marked to a case on the 'court docket as attorney for the defendant ; and the clerk of the court testified that the attorney's name was in his (the clerk's) hand- writing, and that he never made such entries without directions from the attorneys ; held, in an action against the attorney for neglect in that case, to be questionable evi- dence of retainer of the attorney by the defendant. Grayson v. Wilkinson, 5 S. & M. 268. 30. If an attorney be employed to defend a siiit, and fail to do so, he is liable to the party injured to the extent of damages actually suffered ; if, however, the attor- ney can show that the defence he was employed to make was not a good one, he would be liable, at most, only to nominal damages. lb. ^ 31. An attorney^t law, who has collected money for his client, will, if he deliver it to a third person to carry to his client, without author- ity or directions from the client so to do, be liable to his client for the sum thus collected, if the same be stolen from such third person while on his way with the money, even though such person were trust- worthy, and took the same care of his money that' he did of his own. 32. W., an attorney at law in Mississippi, collected some money for S. of Louisiana, and notified him of it, and requested him to draw at sight for the sum ; S. ac- cordingly did so, but the bill Vas p|otested, in consequence of W.'s absence ; whereupon W. sent the money tp S. by E., a trustworthy man ; the money was stolen from E. while on his journey, together with some of his own : held, that the bill of exchange drawn on W. by S. was a direction to W. to pay the money in that way, and if he adopted any other mode it was at his own risk. lb. 33. If an attorney be employed 'to defend a suit, and fail to do so, by which judgment is rendered against his client ; before he can be made liable for the amount of the judgment thus recovered, it seems that he must have been in- formed by his client, what was the nature of the defence he was ex- pected to make. lb. 34. The receipt of an attorney at law for a note placed in his hands for collection is not negotia- ble, either by the common law or statute ; and if it be assigned to a third party, without the consent of the holder of the note, and the at- torney, with knowledge of that fact, pay the money to the assignee of his receipt, he will be liable to pay it over again to the holder of the note. Roberts v. Bean, 5 S. & M. 590. 35. Where an attorney at law was sued for damages occasioned by his failure to .sue one of the parties to a note placed in his hands for collection, it will be a good plea in bar of the action, that the attorney at law sued one of the makers of the note in due course of law and recovered a judg- ment against him, which bound a sufficient amount of unincumbered property to pay the debt, and that satisfaction would have been ob- tained of the judgment, but that the plaintiff, by his own act, surrendered up and vacated it. 62 ATTORNEY AT LAW.— AWARD. Ransom v. Cothran, 6 S. & M. 167. 36. The authority of an attor- ney upon a general retainer to col- lect money extends no further than to receive the amount in legal cur- rency ; if he accept anything else without special authority, the cli- ent may refuse to acknowledge it as a payment, and may, where there is a judgment, re-issue the execution ; where, therefore, an attorney at law received of his client's judgment debtor the notes of third persons, and receipted for them as cash to the debtor, the creditor, it was held, might still proceed with the execution against the debtor, unless the debtor could show that the attorney was au- thorized to make the arrangement ; and the attorney's statements at the time that he was so authorized will not be evidence of such au- thority ; especially where the at- torney in his deposition states that he has no recollection of having had a special authority. Garvin v. Lowry, 7 S. & M. 24. 3^'. Before a client can be held by acquiescence therein to have rat- ified the act of his attorney, which was beyond the scope of his au- thority as such, it must be shown that the act was made known to him, and what course he adopted when informed of it. lb. 38. Where A. employed B. as attorney at law to collect a debt against C, and B. brought suit against C, whereupon C. placed collateral paper in B.'s hands, of which collateral B. collected a por- tion, and went off to Texas with it; held, A., not having received or authorized its receptiouj the loss must fall on C. McLaughlin v. Clark, Freem. Ch. 385. 39. An attorney at law has no right to receive bank paper depre- ciated, in satisfaction of an execu- tion. Osgood v. Brown, Freem. Ch. 392. 40. The transfer of an attorney's receipt for a claim in his hands for collection, vests in the assignee an equitable right to the proceeds of the claim. Anderson v. Miller, 7 S. & M. 586. AUDITA QUERELA. 1. See Execution, 1 and 2, as to when the writ of audita querela lies. Hicks v. Murphy, Walk. 66. 2. All the defendants in a judg- ment must unite in a writ of audi- ta querela, or it will be- dismissed. Melton V. Howard, 7 How. 103. AUDITORS. See Chancery, tit. Accounts, as to practice before. Walk. 43. AWARD. See suj)ra, tit. Arbitration and Award. BAIL. — BANKS AND BANK NOTES. 63 B. BAIL. 1. See AUachment, 31, 33; for effect of law abolishing bail, on at- tachment law. 2. Where the condition of a bond is to do a thing which has been rendered impossible and illegal, the obligor is discharged ; where, there- fore, by act of the legislature of 1822, authorizing arrests for debt, it was povided, that the bail should have the liberty, at any time before the return of the first scire facias, or before final judgment, of surren- dering up his principal in his dis- charge ; and the statute of 1839 pro- hibited the arrester imprisonment of any defendant, on either mesne or final process ; held, that the obligors in a bail bond, executed before the act of 1839, but the condition of which had not been forfeited until after, were discharged from their obligation ; for the right of the bail to surrender the principal being taken away by the statute, his lia- bility is also gone. Brown v. Dil- lahunly, 4 S. & M. 713. BANK OF MISSISSIPPI. The Bank'of Mississippi cannot proceed by the mode pointed out in its charter, for suing on paper pay- able at the hank, against an in- dorser on a note payable at one of its branches. Bank of Mississippi y. Bush, Walk. 265. BANKS AND BANK NOTES. 1. See Criminal Law, tit. Lar- ceny ; as to how far bank notes are subjects of larceny. 2. See Execution, 25 ; as to pay- ment of execution in bank notes. 3. See Attorney at Law, 17 ; act of the legislature prohibiting directors of banks from being at- torneys not unconstitutional. 4. The act of 1840, which re- quired the banks in this state to pay specie under penalty of forfeiture of their banking powers and priv- ileges in case of failure, and pro- viding that after forfeiture_ a bank might retain and use its corporate name for the purpose of winding up and liquidating its affairs, did not prohibit a bank which had subjected itself to the penalty, from suing up- on its notes and bills receivable. Campbell v. Mississippi Union Bank, 6 How. 625. 5. The constitution of the state prohibited any law to raise a loan of money on the credit of the state or to pledge the faith of the state unless such law was passed by one legislature, entered on the journal of each house with the yeas and nays taken on it, referred to the next legislature, published for three months previous to the next regu- lar election, and passed by a ma- jority of the next legislature ; in the Union Bank charter, when first passed, the faith of the state was pledged for a certain sum 64 BANKS AND BANK NOTES. in a certain way ; at the next legis- lature a supplement to -the char- ter was passed, making no altera- tion in regard to the pledge of the faith of the state, but altering mere- ly the details of the original char- ter, and the mode of putting the bank in opejation ; held, that the supplemental act was not a viola- tion of the constitution. lb. 6. The charter of the Union Bank, pledging the faith of the state, ■was first passed on the 21st of Jan- uary, 1837 ; it was referred to the next legislature, and on the 5th of February, 1838, the original act,' as iirst passed, was repassed without change ; but on the 15th of Febru- ary, 1838, a supplemental act was passed, changing, in some particu- lars, the original act ; the bank went into operation, and sued certain of its debtors, and they plead the un- constitutionality of the supplement- al charter ; held, that if the supple- ment was unconstitutional, it was void and could nt)t affect the valid- ity of the charter, which became complete on the 10th of February, A. I). 1838 ; and that, therefore, the bank had a right to sue. lb. 7. If a bank have power to issue paper for circulation, and there is no limit in the charter as to the kind of paper to be issued, it may issue post notes, and when issued, they may circulate as money. lb. 8. The defendants to a suit brought by the Mississippi Union Bank, on a note payable to it, plead that the stockholders to the bank refused to receive certain state bonds, the issuance of which was provided for in the charter, that they were in fact not stockholders, and had surrendered the charter ; held, that the plea was repugant and contradictory ; and even if true in all its parts, the state being a stockholder, the bank might never- theless sue, even if there were no other stockholders. lb. 9. A plea to a suit by the Union ' Bank that the note sued fpr, was given for a loan of postnotes which had on them " the f auk of the state pledged,'''' when the bank had no right to pledge the faith of the state ; held, that the plea would not be a good bar to the action, not al- leging that defendant was defrauded or deceived by the statement, and the bank having no power, as was well known to the defendant, to pledge the faith of the state, lb, 10. Where a charter to a bank contained a provision authorizing the issuance of certain state bonds, which could only issue on certain conditions, the non-performance of those conditions would only affect the provisions of the char- ter touching them, but would not , destroy the validity of the resi- due of the charter ;' which would be a complete act of incorporation without such provision for the issu- ance of state bonds. lb. 11. Where the makers of a note discounted by a bank, took, instead of money from the bank, a certifi- cate of deposite with the bank, and afterwards, with that certificate, bought bank stock in a branch of such bank ; the bank will be enti- tled to recover upon the note. Mis- sissippi Railroad Co. v. Scott, 1 How. 79. 12. Where a note is payable to a bank, the stock of the bank held by the maker of the note is no off- set to the note ; but it may be made so by contract between the maker and the bank ; but a single director would not have power to make such contract. Harper v. Calhoun, 7 How. 203. 13. A letter to the cashier of a BANKS AND BANK NOTES. 65 bank by one of its debtors who was also a stockholder, requesting the Cashier to ascertain whether the bank would take his stock towards the payment of his debt, is not a contract, to take such stock in pay^ ment ; even though the bank may express its assent to do so in re- sponse to the letter. lb. 14. Where in a suit by the as- signee of a note payable to a bank, the defendant plead payment, and offered as proof under the plea, that he was owner of stock in the bank, and that the bank was in the habit of taking stock in payment of debts due to it ; held, that the testimony was illegal : the existence of such custom did not amount to a contract. lb. 15. Where bank notes are plead as an offset, they must be filed with the plea. lb. 16. A bank may assign notes payable to it by indorsement of the cashier. lb. and Crockett v. Young, 7 S. & M. 241. 17. See Bill of Exchange and Promissory Note, 108, 109, for the criterion of damages in a suit on a note payable in current bank notes, and the true construction of such contract. 18. See Bill gf Exchange and Promissory Note, 116, 117 ; as to how far a bank is liable for not pro- testing not6 deposited with it for collection; and whether the bank is liable for the neglect of the notary employed by it. 19. See Usury, 9, 14 ; what ef- fect usury has upon contract made by bank, and for questions con- nected therewith. 20. A bank has power to secure its loans in any manner not prohib- ited by its charter or some public statute ; it has therefore power to receive cotton as collateral securi. 6* ty for a loan ; and to ship and sell it for account of the debtor ; espe- cially where there was a clause in its charter, authorizing it to buy and sell property at pleasure. Commer- cial Bank of Manchester v. Nolan, 7 How. 508. 21. Where a note is sued upon by a bank, which is payable to and discounted by the plaintiff, it is in- competent, for the purpose of di- minishing the amount of the recov- ery, to show that the bills of the bank were at a depreciation when the note matured ; the bank is en- titled to recover the full amount of the note. Commercial and Rail- road Bank of Vicksburg v. Ath- erton, 1 S. & M. 641. 22. It seems that the notes of a bank are a good offset against a note payable to the bank, though the note has been assigned to gen- eral assignees of the bank, and suit is brought for the use of the as- signees, lb. 23. See Defeasance, 1. Where in a separate contract a party agrees to take bank notes in payment of a note, there must be a tender in such notes at the maturity of the note, or the party will recover good money. 24. The notes of a bank are ev- idence under money counts in a suit against the bank. Hughes v. The Grand Gulf Bank, 2 S. & M. 115. 25. The statute providing that the debtors to banks when garnish- eed, may pay the judgment of the court against them, in the notes of the bank as whose debtors they are garnisheed, extends also to the case of a debtor of a bank, whose in- debtedness has been attached and sold by judicial proceedings in an- other state, and suit been instituted against such debtor by the purcha- ser at such sale. Eeggs v. Dyche, 2 S. & M. 606. 66 ■ BANKS AND BANK NOTES. 26. All legislation impairing the I obligation of the contract of a bank charter, is in violation of the consti- tution pf the United States. Payne V. Baldwin, 3 S. & M. 661. 27. The right to transfer notes and other choses in action, by in- dorsement, not being expressly con- ferred in a bank charter, and that right not being essentially important to enable the bank to carry on its business, nor necessarily implied by its charier, the act of 1840, whicb prohibits banks in this state from transferring such notes and other choses in action, does not de- prive them of any granted fran- chise, and is not unconstitutional ; nor can the assignee of a note as- signed in violation of the statute, maintain an action thereon, lb. The plea by which the defence in such case should be set up should be by plea in abatement, as the statute says such suit " shall abate on the plea of the defendant ; " where therefore an action was brought in the name of the Plantei:s Bank against certain makers of a note payable to it, and they plead puis darrein continuance, that the bank had since the institution of the suit transferred the note, and the court below thereupon entered a judg- ment final for the defendants ; lield, that it was erroneous ; the judgment should have been in abatement. Planters Bank v. Sharp, 4 S. & M. 17. The defence must be made by plea in abatement ; it cannot be done under the general issue. Haz- lip V. Leggett, 6 S. & M. 326. The only mode of the defendant's avail- ing himself of the defence is by plea in abatement. Lanier v. Trigg, 6 S. & M. 64l. Commer- cial Bank of Columbus v. Thomp- son, 7 S. & M. 443, 28. By its charter the Mississip- pi and Alabama Railroad Company can hold real estate for the purpose of erecting thereon the bank build- ings, as well as the railroad. Cocke V. Lane, 3 S. & M. 763. 29. After the expiration of the charter of a bank, it ceases to exist for any purpose ; and suits then pending in its name against its debt- ors must abate. Bank of Missis- sippi V. Wrenn, 3 S. & M. 791. 30. Where a note is not dis- counted by the number of directors required by law, but the bank af- terwards sue upon the note, such suit will ratify the discount and make the note binding : as a corpo- ration may confirm the act of its agent. Planters Bank v. Sharp,- 4S. & M. 75. 31. See Executor and Admin- istrator, 196, 197 ; whether where insolvent estate is indebted to a bank, the bank can be compelled to take its pro^ rata portion in its own notes, and the mode of reaching it. 321 See Judgment, 111. Where a bank has judgment against offi- cers of court and they have judg- ment for costs against the bank, the one will be set off against the other. 33. An information in the na- ture of a quo ivarranlo, filed by a district attorney of the state in one of the circuit courts thereof, under the provisions of the act of 1843, which makes it the duty of any district attorney, who shall have rea- son to believe that any bank in this state has been guilty of a violation of its charter, or upon aflidavit of one or more credible persons to that effect, forthwith to file such information, is a civil and not a criminal proceeding. Commercial Bank of Rodney v. The Slate, 4 S. & M. 439. 34. The provision in the act prescribing the mode of proceed- BANKS AND BANK NOTES. 67 ing against incorporated banks for I violations of their charters, which authorizes, upon the filing of an in- formation against any bank, an in- junction to issue restraining all per- sons from the collection of any de- mands claimed by such bank or its agent or assignees or other persons, does not impair the obliga- tion of any contract between such bank and the state, and is not a vio- lation of the constitution of the United States. lb. ^ 35. The provision in the sixth section of the act of 1843, direct- ing the mode of proceeding against banks for violations of their char- ters, which makes it the duty of the clerk of the circuit court, upon the filing of any information against a bank, to issue, as a matter of right on the part of the state, an injunc- tion to restrain all persons from the collection of any demands claimed by said bank or its agents or as- signees or ofiicers, is not a viola- tion of the constitution of the state, and does not confer judicial power upon the clerks of the circuit courts whose duty it is made to issue the injunction. lb. 36. By the charter of the Mis- sissippi Railroad Company confer- ring banking privileges on that com- pany it was enacted that the sub- scribers should pay, at the time of subscription, twenty dollars on each share taken in specie or in the notes of specie-paying banks ; the char- ter was silent as to how or when the residue of the stock should be paid, but conferred all the usual rights, powers and privileges of banking which were exercised by other banks in this state ; held, that the residue of the capital stock was payable by the stockholders in specie only. King v. Elliott, 5 S. & M. 428. 37. The payment of the capital stock in specie is an essential requi- site to the existence of a bank. lb. 38. The capital stock of a bank is a trust fund for the payment of the note-holders and creditors of the bank. lb. 39. The acts of the legislature of 1840 and of 1842, which pro- vide for the payment of the debts due to the banks of this state by the debtors, even when garnisheed, in the notes of such banks, do not apply to the indebtedness of delin- quent stockholders for stock un- paid in ; such indebtedness can only be discharged in specie, wheth- er to the banks or to a garnishee ; it may be garnisheed at law by a judgment creditor, and when so gar- nisheed, the delinquent stockholder must pay in specie. lb. 40. K., being a judgment credi- tor of a bank in this state, gar- nisheed E. under the statute of 1827, as a debtor to the bank ; E. answered that he owed the bank eleven hundred dollars on his origi- nal subscription as a stockholder, and tendered that sum in the notes of the bank in discharge of the garnishment ; held, not to be a dis- charge ; and it not appearing that the capital stock was not an ample indemnity for all the creditors, nor that E. was a creditor when he was garnisheed, held, that K. was en- titled to a judgment against E. in the ordinary form for the amount of stock due by him. lb.' 41. It seems that where a debtor of a bank is garnisheed at law, he cannot after the garnishment, ac- quire notes _ of the bank to make an offset against the garnisheeing creditor ; the claim is transferred by the garnishment, and subse- quently acquired offsets cannot avail him. lb. 68 BANKS AND BANK NOTES, 42. Where, by the act of incor- poration of a bank, the subscribers to stock were required to pay at the time of subscription, ten per cent, in specie on the amount subscribed for ; a mere subscription for stock, without the subscribers paying the ten per cent, in specie, but merely executing his note to the banlc for that sum, would not constitute such subscriber a stockholder ; such subscription would be void and im- pose no obligation on the subscri- ber. Hayne v. Beauchamp, 5 S. . & M. 515. 43. Where, by the act of incor- poration of a bank, it was provided that the subscribers for stock should each pay- ten per cent, in specie on the amount subscribed at the time of subscription ; and the commis- sioners who were to receive the subscriptions and the cash payment took, in lieu of the latter, the note of the subscriber for the required per centage, which note was discounted by the bank and the proceeds on the check of the subscriber being drawn and presented to the bank therefor, put to the credit of such subscriber on his stock account ; held, that the original subscription for stock was void, as being in violation of the charter, but that the note discounted by the bank and the proceeds credited to the subscriber on his check, as so much stock paid, would not be void ; the discount of the note and the direction of the pro- ceeds, with the approbation and at the instance of the subscriber, would render him a stobkholder at least to the extent of the note, and would constitute a sufficient consideration to render the note binding, lb. 44. Where, in an action by a bank against the parties to a note held by it, it appeared in proof that the cashier of the .bank had made an agreement which, if carried out, would have discharged all the par- ties to the note but one ; and that he had made that agreement after consulting with two or more of the directors, and the court instructed the jury that the cashier of the bank had no authority to bind the bank by any contract that would release parties, but that if he acted on consultation with two or more of the directors, then his acts would be binding*on the bank ; held, that the entire instruction, taken togeth- er, and applied to the facts, would not be erroneous in its conclusion. Payne v. Commercial Bank erf Natchez, 6 S. & M. 24. 45. To an acf ion brought by a bank payable to it by its corporate name, pleas denying the corporate existence of the bank at the time of the execution of the note and setting up violations of its charter and asserting a failure on the part of the bank to comply with certain prerequisites to its corporate exist- ence, however defective they may be in form, cannot be stricken out on motion, they must be reached by demurrer. Smith v. Commer- cial Bank of Rodney, 6 S. & M. 83. 46. It seems that where proper- ty of a bank is sold under a judg- ment against it for more than will pay the judgment, the sheriff can exact gold and silver from the pur- chaser for the surplus, and the notes of the bank for such surplus will not be such a payment as will entitle the purchaser to a deed. Davis V. Pry or, 6 S. & M. 114. 47. In an action of assumpsit by a bank upon a promissory note pay- able to itself, it is not competent for the court, at the instance of the defendant, to inquire into the organization of the bank or as to BANKS AND BANK NOTES. 69 fraud in the taking of its stock. Smith V. Mississippi and Alabama Railroad Company, 6 S. & M. 179. 84. Where in a proceeding by information, in the nature of a quo warranto, against a bank, the court was asked to charge the jury, that «if they believed from the evidence that the cashier or teller or clerk of the bank,, as officers and agents of the bank, received either directly or indirectly from any one the notes of non specie-paying banks, in payment for any part of the capi- tal stock of the bank, they must find for the plaintiff; it was held, that the charge was too broad ; to make a payment binding on the . corporation, it should be made to some agent authorized to receive it ; the acts of a cashier of a bank, are only binding upon the bank, when he acts within the sphere of the agency prescribed to him- ; if there be no express regulation or restric- tion, all acts which appertain to his office will bind the bank ; if he be restricted in the scope of his agency by the bank, his act in violation of the restriction or beyond its limit, will not be the act of the bank ; his acts, however, will be prima facie binding on the bank, when performed in the discharge of the ordinary duties which belong to that officer ; and in order to avoid such acts, it devolves upon the cor- poration to show a special restric- tion imposed upon the cashier by the directors. The Slate v. Com- mercial Bank of Manchester, 6 S. & M. 218. 49. A directory of a bank may, through its cashier, violate the char- ter of the bank ; if however they can show, that in the particular act of the cashier, alleged to be a vio- Jation of the charter, he departed from his duties as prescribed by them, such act will not cause a forfeiture of the charter. lb. 50. Where in an information, in the nature of a quo warranto, against a bank ; the court was asked to charge the jury, that " if they be- lieved that it was agreed between the cashier of the bank, and M., a holder of part of the capital stock of the bank, that M. should, in or- der to make payment for his stock and evade the charter of the bank, procure the notes of the bank, then not paying specie, and that the cashier should receive them and count out their amount in specie, and immediately take or receive back the specie, without M.'s being at liberty to take it from the bank, and that M. should thereupon re- ceive a certificate of stock, and that this was done, they must find for the plaintiff;" itwas /leM, there being proof that the directory had given positive instructions that nothing but gold or silver, or the notesof specie-paying banks should be received in payment of stock, that the charge, as asked, was pro- perly refused, lb. 51. If a plea of mil liel corpora- tion under oath, be filed to a declaration by a bank, on a note, and issue be joined thereon, and the bank introduce in evidence a copy of the act, of its incorpora- tion, with proof of user under the charter, it is sufficient to entitle it to recover. Henderson v. Missis- sippi Union Bank, 6 S. & M. 314. 52. See Contract, 59 ; when de- fendant sued on a contract, with a bank, may show the depreciatioft of the notes of the bank, at the time, by way of offset. 53. The provisions of the act of the legislature of 184?, {Acts, p. 53,) entitled an act, " prescribing the mode of proceeding against in- 70 BANKS AND BANK NOTES. corporated banks, for a violation of their franchises ;" which provide that when ajudgment of forfeiture is entered against a bank in pro- ceedings under that act, its debtors shall not thereby be released from their debts and liabilities ; but that the court rendering such judgments shall appoint one or more trustees " to take charge of the books and assets of the bank, to sue for and collect all debts due to it, to sell all its property and apply the .same, as might be thereafter directed by law, to the payment of its debts," - do not impair the obligation of the con- tracts of the debtors of the bank, and are in all respects constitution- al. Nevitl V. Bank of Port Gib- son, 6 S. & M. 513. 54. All legislation, which mate- rially affects the laws for the en- forcement of a contract, which ex- ist at the time it is made, impairs the obligation of the contract ; yet the right of the legislature to remit a penalty or forfeiture, imposed by lawj exists, and may be enforced without impairing the obligation of any contract to which the penalty or forfeiture may be attached ; where, therefore, a bank has forfeited its charter, it is a legitimate and pro- per exercise of legislative power to provide by law for the preserva- tion of the property of the bank for the benefit of its creditors, by remitting the penalties which attach to a judicial judgment of forfeiture of charter. Jb. 55. The sixth section of the act of 1843, prescribing the mode of procedure against banks which have forfeited their charters, which au- thorizes the issuance of an injunc- tion against the bank to restrain it from the collection of its debts, is constitutional only when taken in connection, and regarded as part of the same law, with the ninth, tenth, and eleventh sections of the act, and which provide for the collec- tion and preservation of the debts and assets of the bank for the bene- fit of creditors. lb. 56. Where a judgment of for- feiture has been rendered unde% the act of 1843, and trustees have been appointed by the court ren- dering the judgment, all suits pend- ing in the name of the bank, whe- ther at law or in equity, may be re- vived at the instance and in the name of the trustees ; and the ac- tion will progress in the name of such trustees in the same manner and to the same effect that a suit is revived in the name of an execu- , tor or administrator, which was pending in the life-time of the tes- tator or intestate. lb. 57. The act of 1843, in its ninth, tenth, and eleventh sections, direct- ing the trustees to proceed to col- lect the debts and property of the bank for the benefit of creditors to be applied as thereafter directed by law, constitutes the property of the bank a trust-fund for the benefit of creditors, which no subsequent legis- lation can appropriate otherwise ; and if the legislature fail to direct the mode of distribution among the creditors, a court of chancery will execute the trust ; such judgment of forfeiture and appointment of trustees, is an assignment by opera- tion of law of all the property of the bank to the trustees for the benefit of creditors ; which relates back to the period of the issuance of the injunction against the bank under the act, and preserves the assets and property of the bank from that time, for the benefit of creditors ; such judgment has none of the common law consequences of a forfeiture ; the legislature has BANKS AND BANK NOTES. 71 waived' its right to those penalties by providing that concurrently with the judgment of forfeiture, the as- sets and property of the bank shall vest in trustees for the benefit of creditors of the bank. lb. 58. The mere judgment of for- feiture does not, ipso facto, work a dissolution of the corporation ; there must be first execution and the seizure of the franchises before the penalties of forfeiture take place. lb. 59. In a proceeding against a corporation as such for forfeiture of charter, the performance of con- ditions precedent to the existence of the corporation cannot be inquired into ; its existence as a corpora- tion is admitted by the proceeding against it. Commercial Bank of Natchez v. The State, 6 S. & M. 599.* 60. The charter of the Com- mercial Bank of Natchez provided, that no person, firm, or corpora- tion should, in the original sub- scriptions for stock, on any one day subscribe, directly or indirect- ly, or procure any other person to subscribe, with the understanding that it should be transferred after the books were closed, for more than fifty shares of stock ; in a pro- ceeding by quo warranto against the bank, it was alleged as a ground of forfeiture, that more than fifty shares had been subscribed for, in violation of that section of the char- ter, and that the stock had been afterwards transferred ; held, that these subscriptions for stock being under the superintendence of eight commissioners named in the char- ter, and under their supervision, and before the bank had a corpo- rate existence, the bank as suchj could not be held responsible for the violations of law of those com- missioners who were the agents of the state ; bona fide subscribers to stock in a bank cannot be affected by irregularities which occur in the subscriptions for stock preliminary to the organization of the bank, made under the supervision of agents of the state appointed for the purpose of organizing the bank. lb.* 61. It was provided in the char- ter of the Commercial Bank of Natchez, that " should any stock- holder refuse or fail to pay any instalment on his stock when called for, the company shall sell said stock, on giving thirty days' no- tice in some gazette on account of and at the risk of the stockholder ; " held, that a failure on the part of the bank to comply with this pro- vision was not a cause of forfeiture of the charter of the bank ; the au- thority to sell the stock was a mere cumulative remedy given to the corporation to enable it to coerce the payment of stock in a more speedy manner than by action at law. lb.* 62. A refusal by a bank, on pro- per application, to pay its notes, bills, bonds, and other liabilities is- sued by the bank, in specie, is a cause of forfeiture of the charter of the bank. lb. 63. The charter of the Commer- cial Bank of Natchez contained no provision which in so many words required the bank at all times to pay specie ; the capital stock was to be paid in gold or silver, or the notes of specie-paying* banks, and the bank was prohibited from issu- ing notes to a greater amount than three times that of the capital stock * By Mr. Chief Justice Shabksv ; ihc otiier judges giving no opinion on tliese points. 72 BANKS AND BANK NOTES. paid in ; by another section of the charter it was provided, that if the bank refused to pay its notes on demand, the holder might demand an interest of twelv« and a half per cent, per annum on such notes, the payment of which had been re- fused. In a proceeding by quo warranto against the bank, it Was alleged, as a cause of forfeiture, that the bank, on the first day of November, 1841, and on divers other days before and since, did refuse, on demarid being made at its counter in its banking-house, during the regular hours for doing business, to redeem in specie or other lawful money of the United States, the notes, bills, bonds, and other liabilities issued by said bank and then due ; held, on demurrer by the bank, that the cause of for- feiture was sufficiently pleaded, and the demurrer must be overruled ; nor will the answer of the bank, that it paid aU its notes and liabili- ties except certain checks which it had drawn on another bank, for payment of which provision had been made with that bank, but it failed to pay them and they were returned, at which time the bank was not able to redeem them, but in two years afterward and before the commencement of any ' pro- ceedings against it, it resumed spe- cie payments on these checks and all other liabilities, whenever pay- ment was demanded at its- counter, and was then paying specie, be a sufficient answer to the charge of forfeiture or any excuse for the suspension. How far a mere tem- porary suspension of specie pay- ments by a bank will work a cause of. forfeiture, and what is a tempo- rajy suspension ; qucBre ? lb. 64. In the year 1840 the Com- mercial Bank of Natchez, charter- ed previously, being in a state of suspension of specie payments, the legislature passed a law that all the banks in the state, by the first of April thereafter, should pay spe- cie on their notes of five dollars ; by the first of July, on their notes of ten dollars ; by the first of Octo- ber, on their notes of twenty dol- lars, and by the first of January, 1841, on all their notes, bills, and other liabilities ; held, that this act was constitutional and valid ; and a failure on the part of the bank to comply with the provisions of the law would work a forfeiture of its charter. lb. 65. A bank charter is a contract within the meaning of the consti- tution of the United States, and any legislative act which impairs it by enlarging the powerof the state over the body corporate, or by abridging its franchises, or which alters it in any material point, is void. lb. 66. In 1843, the legislature pass- ed a general law prescribing the mode of proceeding against banks that had violated their charters ; and in the same year proceedings were cominenced under it against the Planters Bank. In 1844, the legislature passed an act specially in relation to that and another bank, authorizing them upon certain con- ditions to surrender their charters ; and upon their refusal to do so, making it the duty. of the attorney- general, and requiring him to pro- ceed by bill in the superior court of chancery against them, have a re- ceiver appointed to take charge of their property, and proceed to have them wound up ; and providing that ,if either of the corporations should accept and comply with the condi- tions of the act by a voluntary sur- render of its charter, then such BANKS AND BANK NOTES. 73 bank should be released from the operation of the law of 1843 ; the Planters Bank did not accept the conditions of the law of 1824 ; and the proceedings under the law of 1843 progressed to judgment against it, when the bank appealed to the high court, and contended that the circuit court had no jurisdiction by reason of the act of 1844, over the bank ; held, that there was no ne- cessary repugnancy between the two acts, and therefore the latter was not by implication a repeal of the former; that no proceedings being instituted, in the chancery court tinder the latter act, the cir- cuit court did right to proceed to judgment under the law of 1843. Planters Bank v. The Slate, 6 S. & M. 628. 67. Where a suit is brought by A. and B., assignees of C., who is payee of a note, and the defendant does not deny that they are such assignees, under oath, he cannot show that the note is in reality the property of a bank, and thus insist upon his right to pay it in the notes of the bank after judgment. Lanier v. Trigg, 6 S. & M. 641. /^ 68. Corporations may contract ( under their corporate seal, by a \ vote of the directory, entered on the books of the corporation, or by / their agents acting within the scope / of their authority ; and binding con- "^ tracts may be implied from their corporate acts, without either a vote, deed, or writing. Petrie v. \Wright, 6 S. & M. 647. 69. The failure by a bank to re- deem in specie the notes which it has put into circulation, is a cause of forfeiture of its charter; when it suspends specie payments, it ceases to discharge the obligation imposed upon it by its creation, and to an- swer the ends for which it was 7 instituted, and unless there be some express exemption extended to it for such failure, the state, may re- sume its grant. The Planters Bank V. The State, 7 S. & M. 163. 70. It seems that banks are not exempt from the rules of the com- mon law in regard to corporations, and' the application of the law of quo warranto to them for forfeiture of charter ; but are subject to them at least so far as to have a judg- ment of forfeiture entered against them for a failure to pay their notes in specie. lb. 71. Where a person, on being authorized so to do, collected , the debt of another in notes of a bank then current at par, with instruc- tions to pay the proceeds after sat- isfying a debt due to himself, over to a third person, and that third per- son directed a special appropria- tion of the money to another party, who was willing to take it at par, which appropriation the holder of the notes refused to make ; held, that this refusal made the sub- sequent holding of the notes at his own risk, and that he would be lia- ble to the person entitled to the money for the full amount thereof in specie, notwithstanding the de- preciation of the notes. Knight v. Yarborough, 7 S. & M. 179. 72. A court of equity has no jurisdiction of a bill at the suit of a portion of the stockholders of a bank against the president and cashier to restrain them from the exercise of their functions as such, for alleged malfeasance in office ; the directory of a bank have, even though it b^ not expressly conferred, full power of removal of such offi- cer from office ; and court of chan- cery has no control over the sub- ject of amotion from office. If,' however, the stockholders alleged 74 BANKS AND BANK NOTES. in their bill that the directory con- nived at the mismanagement of the officers, it seems a court of equity would interfere and restrain their mal-conduct. Bayless v. Orne, Freem. Ch. 161. 73. Chartered privileges cannot be taken avifay by any ' collateral proceeding ; nor in any other hiode except the usual forms by scire fa- cias or quo warranto ; a court of chancery has no jurisdiction or power over corporate bodies for the purpose of restraining their operations, or winding up their concerns ; unless it be conferred by statute. lb. 74. The stockholders of a bank may remove its directory /or cause, even though they may hold office for a fixed time, and no power be expressly given to remove ; but a mere ministerial officer, such as cashier, &c., may be removed at pleasure, whether there be cause or not. lb. 75. All suits brought for the purpose of compelling ministerial officers of a private corporation to account for breach of duty, should be brought in the name of the corporation ; unless it be al- leged that the directory connived at the delinquency. . lb. 76.^ S. contracted with P. and others to do a piece of work for a certain agreed price, and receive his pay in the notes of a par- ticular bank or their equivalent, the price agreed to be paid being but a fair compensation for the labor to be done ; before the work was completed the notes of the bank agreed upon depreciated, to be worth but one tenth of their value at the time of the contract ; S.' filed his bill to enforce the pay- ment, in good money, of the debt .due him, which P. and others re- sisted, and claimed the right to pay in the notes agreed on ; held, that the great depreciation of the notes was a circumstance not looked or provided for by either party ; that it would be inequita- ble to force S. to receive them, and that he was entitled to recover a feir price for the work done in current money. Sample v. Pickens, 1 S. & M. Ch. 501. 77. L. M. & Co., being the holders of a note secured by mort- gage of W. H., received from a transferred claim belonging to W. H. the sum of $1100 in depreci- ated paper, but refused tO*deliver it to H. when called for ; L. M. & Co. afterward transferred the note of H. to D., who filed a bill to foreclose the mortgage ; held, that H. was entitled to a credit of the $1100 in specie. Dick v. Truly, 1 S. & M. Ch. 557. 78. A banking corporation has power to make an assignment of its effects for the benefit of its creditors, to trustees, and such an assignment will be upheld in equity. Montgomery v. Commercial Batik of Rodney, 1 S. & M. Ch. 632. 79. The legislature of Missis- sippi, in the year 1840, passed an act, declaring that "no bank in this state shall transfer by indorse- ment or otherwise, any note, bill receivable, or other evidence of debt ; " held, that this act did not take away from a bank in failing circumstances the right to make a general assignment of its effects for the benefit of its creditors. Ih. 80. Is not a law, prohibiting corporations from the performance of acts not prohibited by their charter, and not extending the pro- hibition to individuals, in conflict with that clause of' the constitution declaring " all' freemen, when they BANKS. — BANKRUPT AND BANKRUPT LAW. 75 form a social compact, equal in rights," Qucsre 7 lb. 81. A corporation is trustee for the creditors ; and where a trans- fer of its property is made without valid consideration, they may pur- sue the property and force the as- signee thereof to account for it. Wriglit V. Petrie, 1 S. & M. Ch. 282. Robins v. Embry, 1 S. & M. Ch. 207. 82. See Assignment for the ben- efit of Creditors, 1 - 19 ; for the power of a bank to make such as- signment, and for its nature and re- quisites, and what will vitiate it. 83. A cashier is not necessarily one of the corporators, and is not therefore a defendant to a bill, un- less specially made so, and his answer denying the equity of the bill, " on information and belief," without staling what information he has, will not be evidence against the positive allegations of the bill. McGvffie V. Planters Bank, Freem. Ch. 383. 84. A payment of an execution in bank notes current in the country, and at par, it seems would be a satis- faction of the execution if not object- ed to at the time by the plaintiff therein ; but where the defendant, before the court adjourned at which the judgment against him was ren- dered, ordered out the execution, and paid it immediately to the sheriff in depreciated and depre- ciating bank notes ; held, that the ! payment was no satisfaction of the execution, and the entry of satis- faction thereon would be set aside as fraudulent and void. Osgood V. Brown, Freem. Ch. 392. 85. The act which prohibits the banks of this state from assigning their negotiable securities, and re- quires them to receive their own notes in payment of all debts due them, was intended for the benefit of the debtors of the banks, and they may waive their rights under the act, if they choose to do so ; where, therefore, a bank assigned a note, and the assignee instituted suit and recovered judgment thereon without the defendant's pleading the assignment in abatement, they were held to have waived their right to pay in the notes of the bank ; it is a right which they can only assert when sued by such as- signee, by plea in abatement, and if they omit that, their right is gone, and a tender of the notes of the bank to the sheriff will not be good, and if they are received and the execu- tion entered satisfied, the entiy of satisfaction will be erroneous, and be set aside at the instance of the assignee. Com. Bank of fiolum- bus V. Thompson, 7 S. & M. 443. BANKRUPT AND BANKRUPT LAW. 1. See Assignor and Assignee, 5 ; in whose name suit should be prosecuted on a judgment in favor of a bankrupt, which has been sold. 2. See New Trial, 58 ; a plea of bankruptcy not a plea to the merits. 3. A plea of bankruptcy which sets forth that after the making of the promise sued on, the defend- ant became a bankrupt, within the meaning of the statute of bank- ruptcy, but which sets out no dis- charge under the law, is bad. Atkin- son V. Fortinberry, 7 S. & M. 302. 4. A purchaser at a sale made by an assignee in bankruptcy of the bankrupt's effects, acquires only such title as the bankrupt had at the time of his discharge ; where, therefore, a bankrupt, before he 76 BASTARDS. - BILL OF DISCOVERY. filed his petition in bankruptcy as- signed a claim due to him, which was then in the hands of his attor- ney for collection, and the debtor was duly notified of the transfer ; and the claim was, notwithstand- ing the transfer, included in the schedule of the bankrupt's effects, and sold by his assignee in bank- ."ruptcy, and afterwards paid by the debtor to the purchaser at the assignee's sale ; held, that pay- ment to the latter was improper, and no discharge of the debt. An- derson V. Miller, 7 S. & M. 586 BARGAIN AND SALE. See Vendor and Vendee, 3. BASTARDS. Bastards are not included in our statutes of descents ; if their parents afterwards intermarry, our statute makes them legitimate. Porter v. Porter, 7 How. 106. state treasury," are not bills of credit, within the prohibited sense of the term ; even though such warrants may have been sometimes used by individual holders as a cir- culating medium, and a substitute for paper money, lb- 3. In determining whether a cer- tain instrument be a bill of credit, the intention of the legislature, by whose authority it is issued, is an important inquiry ; but that inten- tion can only be deduced from the legislative acts ; testimony aliunde, to explain the motives or point out the objects of the law-makers, is wholly inadmissible. lb. 4. On a trial qf a prisoner for alleged forgery of an auditor's war- rant, proof that when the warrant was issued there was no money in the treasury to take it up, that war- rants were not then redeemed, were under par, and circulated from hand to hand as money, with the view of shewing that they were bills of credit ; held inadmissible. lb. BILL OF CREDIT. 1. The words "bill of credit," as used in the constitution of the United States, mean " a paper me- dium intended to circulate between individuals, and between govern- ment and individuals as money, for the ordinary purposes of society." Pagaud V. The State, 5 S. & M. 491. 2. Auditor's warrants issued un- der the law of this state, making it the duty " of the auditor of public accounts to examine, settle and audit all accounts, claims or de- mands whatsoever against the state arising under any act or resolution of the legislature, and to grant to every claimant authorized to re- ceive the same, a warrant on the BILL OF DISCOVERY. 1. See' Evidence, 183; maybe abandoned, when not answered, and evidence offered to prove what it calls for a discovery of. 2. Where the answer is used it is evidence for or against the party using it, but the bill of discovery may be dismissed and other evi- dence resorted to ; if the party who prays for a discovery does not use the answer it is not his evidence and he cannot be concluded by it ; and he may use other evidence to establish a fact in reference to which a discovery was sought. Carson V. Flowers, 7 S. & M. 99. 3. See Chancery, tit. Bill of Discovery. BILL OF EXCEPTIONS. 77 BILL OF EXCEPTIONS. I 5. Where the action of the court I below, is predicated on evidence, 1. Exceptions not taken by bill of it will be presumed to be correct, exceptions, duly signed and sealed, cannot be taken notice of, by the supreme court. Woodsidesv. State, 2 How. 655 ; Tyson v. Hamer, 2 How. 669 ; Hackler v. Cabell, Walk. 91 ; Byrdv. Slate, IHow. 163. 2. A judge, during the progress of the trial below, may change his opinion though embodied in a bill of exceptions, signed and sealed. Winn V. Cole, Walk. 119. 3. Errors not excepted to, will not be noticed. Carraway v. Mc- Neice, Walk. 538. 4. Exceptions, unless the bill of exceptions shows that they were taken at the time made, and where there is a jury, before its retire- ment, will not be regarded. Wil- son V. Owens, 1 How. 126 ; Irwin V. Jones, 1 How. 497 ; Patterson V. Phillips, 1 How. 572 ; where however the exception is to the overruling or grant of a new trial, the party may embody the evidence in a bill of exceptions, though not excepted to at the trial, and the court of appeals will consider of the case, as the circuit court would do. In such case, all the evidence must be embodied ; that the court above may consider of the whole case. ' Phillips v. Lane, 4 How. 122 ; Deloach v. Walker, 7 How. 1 64 ; Carprew v. Canavan, 4 How. 370 ; Robins v. Pinckard, 5 S. & M. 51 ; If it do not set out the sub- stance of the whole evidence, it will be defective. Terry v. Robins, 5 S. & M. 291 ;. Wright v. Bank of Alabama, 6 S. & M. 251 ; the language of the bill will prevail over that of the record, as to the time of taking. Carprew v. Cana- van, 4 How. 370 ; Helm v. Smith, 2 S. & M. 403. 7* unless the evidence be embodied in a bill of exceptions, from vifhich its error is apparent. Byrd v. State, 1 How. 163. 6. Evidence on the trial below, and papers in the record not legiti- mately parts of it, will not be re- garded, unless embodied in bills of exception, or so referred to therein by apt description, as to leave no possibility of doubt, as to their identity. Goode v. Linecum, 1 How. 281 ; Berry v. Hale, 1 How. 315 ; Maulding v. Rigby, 1 How. 579 ; 4 How. 222 ; Oliver v. The SZaZe,5How. 14; Briggsv. Clark, 7 How. 457 ; Bone v. McGinley, 7 How. 671 ; Barfield v. Impson, I S. & M. 326 ; Abbott v. Hack- man, 2 S. & M. 510 ; Wright v. Bank of Alabama, 6 S. & M. 251 ; Wadlin^ton v. Gary, 7 S. & M. 522 ; Williams v. Guignard, 2 How. 722 ; Rogers v. McDaniel, 3 How. 172 ; Carmichaelv. Brow- der, 4 How. 431. 7. The words in a bill of excep- tion, " here insert it," when spoken of a judgment alleged in the bill of exceptions, to have been read to the jury, will not be sufficiently descriptive of the judgment to per- mit the court to take notice of a judgment spread out in the record but not embodied in the bill of ex- ceptions, lb. So of any other evidence. Rankin v. Holloway, 3 S. & M. 614. 8. An execution, and a forthcom- ing bond, not embodied in a bill of exceptions, is not a part of the re- cord and will not be noticed. Ross v. Garey, 7 How. 47 ; Sprawles v. Barnes, 1 S. & M. 629; Bavis V. Baldwin, 1 How. 550 ; Grigsley y, Francis, 2 How. 845. 78 BILL OF EXCEPTIONS. 9. A bill of exceptions to the refusal to grant a new trial, which' does not embody the evidence, can- not be aided by another bill of ex- ceptions, not properly taken to the ruling out of testimony. Patterson V. Phillips, 1 How. 572. 10. A plat contained in a bill of exceptions will be presumed to be the one to which the objection was 'made, although words of identifi- cation are wanting. Carmichaelv. Trustees of School Lands, 3 How. 84. 11. Where the attorney for the de- fendant offered to withdraw his plea, but the court refused to permit him to do it, to which he took no excep- tion at the time, but afterwards em- bodied the statement i/i an affi- davit on a motion for a new trial, and had the affidavit made part of a bill of exceptions to the refusal to grant a. new trial ; held, Jthat the refusal of the court to allow the withdrawal of the plea, did not ap- pear of record, so as to be the sub- ject of objection ; it ought to have been made so by bill of excep- tions taken at the time. Green v. Robinson, 3 How. 105. 12. Where exceptions are taken and noted at the time, and by the consent of the court and counsel of the other party, drawn up after the jury retire, nunc pro tunc, it will be sufficient. Wilcox v. Mitchell, 4 How. 272. , 13. Whatever is set out in one bill of exceptions, may be referred to in another bill, in the same suit, and will be considered as part of the record. Stark v. Gildart, 5 How. 606. 14. Unless rejected evidence is embodied in a bill of exceptions, exceptions taken to its rejection will not be regarded. Harris v. Newman, 5 How. 654 ; Bone v. McGinley, 7 How. 671 ; the bill of exceptions must show the pre- cise ground of exceptions. Friar v. Stale, 3 How. 422. 15. Affidavits for new trials are not parts of the record, unless made so by bills of exception. Ross v. Garey, 7 How. 47. 16. A bill of exceptions to the re- fusal to grant a new trial signed in va- cation, is invalid ; unless the record shows that the motion for a new trial was taken under advisement. Tucker v. Gordon, 7 How. 306. 17. The recital of the clerk, in the record, that exceptions were taken at the proper time, will not aid a bill of exceptions in which that fact does not appear. Harris V. Planters Bank, 7 How. 346; so also the recital of the clerk, that certain papers in the record were those referred to in the bill of ex- ceptions, will not be evidence of that fact. Maulding v. Righy, 4 How. 222. 18. A bill of exceptions is the only medium of communication between the high court of errors and the circuit court, and the only evidence of what takes place on the trial. Barfield v. Impson, 1 S. & M. 326 ; Vaughan v. The State, 3 S. & M. 553. 19. Where all the evidence in the case is not included in the record, in the absence of which the high court cannot otherwise de- termine upon the propriety of the judgment, it will consider a par- ticular point excepted to as to the improper admission of testimony, and judge accordingly. Scott v. Watkins, 2 S. & M. 233 ; Worien V. Howard, 2 S. & M. 527 ; Tin- nin V. Garrett, 4 S. & M. 207 ; and where the court below refuses to hear any testimony to prove the issue or a material fact, it is not BILLS OF EXCHANGE AND PROMISSORY NOTES:^ 79 necessary to set out the evidence refused to be heard, but it will be sufficient if the record show that the court rejected all testimony on the subject ; it is otherwise, how- ever, where the question is, wheth- er the evidence is material to prove the issue, there the rejected evi- dence must be set out in full. Neal v. Saunderson, 2 S. & M. 572 ; Torrey v. Cook, 3. S. & M. 60. 20. Where a bill of exceptions, at a subsequent term of the court, states that a motion was made for a new trial at a former term and certain affidavits read setting out the motion and affidavits, even though the records of that term contain no evidence of it, yet the high court will regard the statements in the bill of exceptions as part of the record and consider them conclusive. Kane V. Burrus, 2 S. & M. 313. 21. See Set-off, 17 ; the bill of items to plea of payment is not a part of the record, unless made so by bill of exceptions. 22. Bill of exceptions, certified by the clerk below, as appertaining to the case and in the record, need not be entitled of any court or case. Gordon v. Parker, 2 S. & M. 485. 23. Where a motion for a new trial was made and continued, and at the next term of the court the motion was overruled, and a bill of exceptions taken thereto, signed by a different judge from the one who presided at the trial, the court will regard it as fully a part of the re- cord as though it had been signed by the presiding judge. Robinson \. Parker, 3 S. & M. 114.- 24 An imperfect bill of excep- tiofis will not preclude the examina- tion of the rest of the record to as- certain if there be error irrespec- tive of such imperfection. Rankin v. Holloway, 3 S. & M. 614. 25. Where a bill of exceptions refers to certain papers as being marked with certain letters of the alphabet, but the writings them- selves are not incorporated in the bill of exceptions, the court will not notice them, even though simi- lar instruments are inserted in the record. Piekett v. Planters Bank, 5 S. & M. 470. 26. A bill of exceptions, unless signed by the judge, will not be no- ticed, though it is spread out in the record. Graves v. Monet, 7 S. & M. 45. 27. The recital in the bill of ex- ceptions taken to an order of the probate court, setting aside the re- port of referees of a claim against an insolvent estate, that the party excepting relied on a decree of the probate court allowing his claim as evidence before the referees, is not evidence, before the high court of errors and appeals, of such decree, where none such is embraced in the record. Green v. Creighton, 7 S. & M. 197. BILLS OF EXCHANGE AND PROMISSORY NOTES. 1. Bills of exchange and promis- sory notes import considerations, and none need be stated in plead- ings on them ; but in an action on a contract to deliver a certain quan- tity of cotton, on demand, the consideration must be averred. Minor v. Michie, Wa\k. 24. 2. See Assignor and Assignee, 2, as to their negotiability under our statute. Defrance v. Davis, Walk. 69. 3. Notice of protest, may be proved withoiyt producing the writ- ten notice. Offitt v. Vick, Walk. 99. 80 BILlS OF EXCHANGE AND PROMISSORY NOTES. 4. An acknowledgment by an indorser of a bill of exchange, that he had received notice of the pro- test, arid supposed he should have to provide for the payment of the bill, is equivalent to legal notice and to a promise to pa;y; but if the drawer or indorser of a dis- honored bill of exchange pay the amount to the holders, without having received notice, and with- out knowledge of that fact, he may I'ecover the money back ; and a promise to pay under ignorance of the facts, is not binding. lb. When it appears aiRrmatively that the holder of an indorsed note has been guilty of neglect, and omitted to give the proper notice, k sub- sequent promise of the indorser having knowledge of the laches, to pay the note, operates as a waiver of regular notice ; whether the proof of the irregularity, and that the indorser's promise was made with a knowledge of it, is to come from the plaintiff, before he can make such promise operate as a wai- ver. Quare ? But where there is no proof of demand or notice, a promise by the indorser to pay the note, made after its protest, is pre- sumptive evidence that due demand was made and due notice given to such promising indorser ; it is however but presumptive evidence, and may be rebutted by proof showing that no demand was made or notice given ; therefore where H., being indorser of a note for P., agreed, after maturity and protest, that the holder might grant P. a year's indulgence on it ; and at the expiration of the year H. agreed if the holder would sue P. and him- self jointly, in the state court, instead of H. alone in the United States court, he and P. would let judgment go by default in the state court, to which P. assented ; and the suit was accordingly brought in the state court ; P. refused to let judg- ment go by default, whereupon H. also refused, and plead to the action, held, that H.'s conduct and agree- ment to let judgment go by default, were equivalent to the most un- qualified promise of payment, and were a full admission that he had no defence whatever to make to the action. Rohhins v. Pinckard, 5S. &M. 51. 5. It is immaterial from whom the notice of protest is received ; the holder of the bill, at maturity, should demand payment, and if that is not made by drawee, should protest the bill and send notice on the same day through the post- office, if the mail has not left. lb. 6. Is a,bill of exchange, drawn in our state, by one of its citizens, upon a citizen of another state and there payable, a foreign or inland bill of exchange ? lb. 7. In an action of assumpsit on a joint and several promissory note, one of the obligors cannot discharge himself at law, by evidence that he was a security only, and had been injured by the failure or neglect of the plaintiff to prosecute his de- mand against the principal debtor, after being requested so to do by the surety ; such a defence, if avail- able anywhere, must be made in a court of equity. Kerr v. Baker, Walk. 140. It seems it is not available anywhere. BuUit v. Thatcher, 5 How, 689. 8. A promissory note, indorsed specially, cannot be given in evi- dence,, to support an action in the name of original payee ; possession of a note payable to bearer, or one payable to order and indorsed in blank, is prima facie evidence of ownership ; but if the indorsement. BILLS OF EXCHANGE AND PROMISSORY NOTES. 81 be special, the suit must be in .the name of the special indorsee, and ' if the note return to the ownership of the payee, he must, in an action, show a transfer to him from the special indorsee, or the jury will be instructed as in case of non- suit. Smith V. RunneJls, Walk. 144, Sed aliter, the special indorsement may be stricken out at the trial. Planters Bank v. Chewning, 5 How. 413. 9. The rules which prevail rel- ative to negotiable paper, must be enforced, as well against illiterate as informed persons, whatever may be the hardships or injustice of their application. Chanee v. Right, Walk. 156. 10. Notice of protest, given on the day that a note falls due, is sufficient. H^relv. Bixler,Walk. 176. 11. A promissory note is prima facie proof of a valuable consider- ation in the hands of the holder and if in pleading on one a consid- eration be averred, it need not be proved. Moore v. Miekell, Walk. 231. 12. A judgment on a note, in a suit between the indorsee and ma- ker is not conclusive in an action on the same note between the payee and maker. Wright v. Bixler, Walk. 256. 13. Judgment by default against indorser of a note, is final. Owen V. Little, Walk. 328. 14. The rights of the assignee of a promissory note, will not be affected by the service of a gar- nishment upon the payee of the note, after assignment ; being a chose in action, it is not affected by lien of a judgment. Black v. McMurtry, Walk. 389. 15. Notice of protest left at the nearest post-office to the residence of the indorser, where he does not live in the town, is sufficient. Stamps v. Brown, Walk. 526 ; Sed aliter Wilcox v. . McNutt, 2 How. 776 ; Patrick v. Beazley, 6 How. 609. The post-office can be used only as a medium of trans- mission, wad not of deposit merely ; where, therefore, an indorser lives out of the corporate limits, but nearer to the post-office of the town where the note is protested than to any other post-office, he is entitled to personal notice ; and notice depos- ited for him in the post-office will not bind him. lb. To the same ef- fect is Hoggatt V. Bingaman, 7 How. 565 ; where all the cases are reviewed, and the decision in Patrick v. Beazley confirmed. 16. Where A. executed two notes to B., which B. indorsed to C, and A. die insolvent, and his estate paid seventy-two cents in the dollar, and B. is sued as in- dorser on both notes and nonsuits C. on the first, the credit of sev- enty-two cents must be distributed pro rata on both notes, and not allowed altogether on the one whereon B. was made liable. lb. 17. The doctrine that a party to negotiable paper is not a com- petent witness to affect it, does not apply where the indorser is of- fered to prove some fact transpir- ing after he had parted with the paper. Drake v. Henly, Walk. 541. 18. See Garnishment, 2, 3 and 4, as to conflicting rights of as- signee of note, and garnisheeing creditor of payee. 19. Where an account is closed by note, suit must be brought on the note, and cannot be maintained on the account. Slocumb v. Holmes, 1 How. 139. 20. A note given for an im- provement upon vacant govern- 82 BILLS OF EXCHANGE AND PROMISSOEY NOTES. ment land, where there was no' right of preemption, is for an ille- gal consideration and void ; both parties being mere trespassers ; a consideration to uphold a note must not be merely beneficial or prejudicial to the one party or the other, but the benefit must arise from a legal act. Merrel v. Le- grand, 1 How. 150. 21. See Evidence, 52-54, as to when, in an action on a note made by A. B. & Co., the compa- ny, in order to deny the execution of the note, must plead under oath ; and also how far note with condi- tion is a positive promise to pay. 22. In an action against the maker of a note payable at a par- ticular place, no demand at that place need be averred or proved. Washington v. Planters Bank, 1 How. 230. '; 23. Interest on a debt is an inci- dent to it, and need not be declared for in the declaration ; and where a judgment by default is taken on a note, the clerk will, calculate in- terest on it. lb. 24. Where one of the joint makers of a note becomes after- wards, in conjunction with another person, the assignee of the note, such assignees cannot sue the other makers on the note ; the note was discharged on being assigned to one of its makers ; nor in such case will it make any difference if the maker, who thus becomes one of the joint assignees, was but a surety of his co-makers ; he can sue them for contribution, but not on the note ; that is paid. Stevens V. Wpst, 1 How. 308. 25. The possession of a pro- missory note by A. payable to B., and not indorsed, is evidence of A.'s ownership of the note, and in an action against A. by the maker of the note, he may plead such note as a set-off... Glass v. Moss, 1 How. 519. 26. The words without plea or offset, in a promissory note, are not an essential part of the contract, and will not preclude a defence to the note. Williams v. Harris, 2 How. 627. 27. In an action on a note it is competent for the defendant to show under the general issue, that the plaintiff has no interest in it, and thus defeat the action ; and al- though possession of a note is prima facie evidence of ownership, it may be rebutted by other proof ; and it seems if the note be payable to bearer, under suspicious circum- stances, the bearer might be com- pelled to show how he acquired it ; and if the maker pay^a holder who he knows has no right to recover, it will not be an extinguishment of the debt. Netterville v. Stevens, 2 How. 642. A plea, therefore, that the plaintiff had no interest in the note sued on, would be bad as amounting to the general issue. lb. ; yet to such a plea the repli- cation that he had an interest in the note, would be a good traverse. Anderson v. Patrick, 7 How. 347. And it seems that on the trial the plaintiff must show an interest ; and proof is admissible to disprove it. lb. 28. An inland bill of exchange, drawn before the act of 1836, taking off damages, but protested for non-payment after the act, is not entitled to damages. Puckett V. Redman, 2 How. 688. 29. Where a negotiable note, after having been indorsed by the payee, returns to the hands of the maker, he cannot reissue it so as to bind the indorsers ; but if an action on such a note thus reissued be BILLS OF EXCHANGE AND PKOMISSORY NOTES. 83 brought against the indorser and he permit judgment to go by default, it will be the admission of a cause of action, and the judgment will not be disturbed. Claiborne v. Plant- ers Bank, 2 How. 727. 30. If the declaration on a bill of exchange do not show that it was a foreign bill, it will be regard- ed as a domestic one, and subject to damages as such ; nor will the court judicially know that a bill ad- dressed to persons in New Orleans, is addressed to persons out of the state. Rowland v. Hoover, 2 How. 769. • 31. Where a bill is subject to damages on protest, it is error to calculate interest on the -damages ; it can only be allowed on the amount of the bill. lb. 32. Where^parties reside in the same city or place, notice of pro- test -must be personal, or left at the dwelling-house or place of busi- ness ; if in different places, it must be sent through the post-office to the post-office nearest the party en- titled to notice ; and where they live in the same place, and the in- dorser be temporarily absent, no- tice to bind him must be left at his residence or place of business. Wilcox V. McNutt, 2 How. 776 ; Walker v. Tunstall, 3 How. 259. 33. No custom of notaries in serving notices iri violation of law, can affect the application of the law or the rights of parties. lb. 34. In a note payable to J. S. as administrator, the words " as admin- istrator" will be mere words of de- scription, and J. S. may maintain the action and recover judgment in his own name. Carter v. Saun- ders, 2 How. 851. 35. See Jeofails, 11 ; how far failure to aver demand and notice cured by statute. 36. See Abatement, 2 ; for plea {or non-joinder of all parties to note under act of 1837. That act re- quiring the holder to sue all the parties to a note in a joint action, in the county where the maker re- sides, is constitutional ; it affects only the remedy. Rappleye v. Hill, 4 How. 295 ; McMillan v. Spra^ue, 4 How. 647. 37. Where a judgment by de- fault was taken on a bill of ex- change drawn by one person in this state, on another person in this state, but accepted payable in New Orleans, the clerk can calculate, without the intervention of a jury, the interest and damages fixed by statue for the non-payment of in- land bills ; and the fact that the bill was protested at the wrong place, if it so appear on the declaration, is cured by the statute of jeofails. Grisly V. Ford, 3 How. 184.' 38. A bill or note payable to two must be indorsed by both to pass the title to the ijidorsee ; and the indorsee of one cannot sustain an action on the note by the aver- ment that the other payee had re- leased his interest in the note to his co-payee. Bennett v. McGombIiv, 3 Haw. 192. ^r *' 39. Where, by law, the holder of a foreign bill of exchange was en- titled ta five per cent, damages on the protest of the bill, and the bill was protested ; and afterwards, be- fore a suit was brought on the bill, a law was passed, taking off the damages from foreign bills ; held, that the holder of the bill would be entitled to the damages allowed when it was protested. Sadl^ V. Marrah, 3 How. 195. 40. Where a member o% con- gress has a residence in the stale he is entitled to receive notice of pro- test, there ; and if his residence be 84 BILLS OF EXCHANGE AND PEOMISSORY NOTES. not known, diligent inquiry must be used to discover it ; and notice sent to him at Washington city, D. C, will not be sufficient ; but if the indorser had no residence in this state, but was known to be in Wash- ington city at the time of protest, notice there wouM be good. Walk- er V. Tunstall, 3 How. 259. If the indorser have no kn^^vn residence or known place of business, he is not entitled to any notice to fix his liability ; nor in such case is it neces- sary to prove the exercise of dili- gence to ascertain his residence, it not having any existence ; so also if the indorser at the time of protest, in this state, be in Washington city, a member of the United States>sen- ate then in session, in the daily hab- it of receiving his letters through the post office in Washington, and at his last place of abode in this state, has left no agent to receive or forward letters, notice sent by mail to Washington city, would be suffi- cient. Tunstall g. PFatt;er, 2 S. & M. 638. 4L Where a bill of exchange, not made payable at a particular place, is transferred to a bank, and neither the acceptor nor iSdorser knew that the bank held it, ajid no custom proved of depositing of such paper in bank ; held, that a de- mand of payment at the counter of the bank would not charge the in- dorser ; the demand should have been personal, of the acceptor. Lewis v. Planters Bank, 3 How. 267 ; aliter, if the usage had been established of the negotiation of such paper at the bank. lb. See also Planters Bank v. Mdrkham, 5 How. 397. 4i Parties who make negotiable paper, will be bound by the rules and usages which exist in relation to such paper, and will be pre- sumed to have contracted with re- ference to them. Ih, 43. See Alteration, 1, for effect of, on liability of parties. 44. The indorsee of a note may plead the same, as an offset against a suit, by the payee and prior in- dorser, to recover money due on a different claim, the indorsement being a new and distinct contract to pay the amount of the note in- dorsed to the holder, whether the indorser be surety or not ; and this right is not changed by the law of 1837i which requires all the par- ties to be jointly sued. Pease v. Turner, 3 How. 375. 45. See Evidence, 176, 177, mem- oranda of -deceased notary, evidence and cpnstruction of, left to jury. Bar- nard V. Planters Bank, 4 How. 98. 46. Where an ir^orser dies be- fore the maturity of the note, and the holder is aware of it, it is his duty to give notice to his personal representatives, if he can by ordi- nary diligence find out who they are ; if he cannot do that, or does not know of the indorser's death, notice directed to the indorser will be sufficient. Barnes v. Reynolds, 4 How. 114. 47. If a note be indorsed in blank, and before it is filled up the indorser die, the holder of the note may, notwithstanding, fill up the blank to the same extent, as if the indorser were still living, lb. 48. If a note in the course of negotiation return to the hands of the maker it is thereby extin- guished, and cannot be again put in circulation. lb. 49. Where an indorser die be- fore the maturity of the note, he cannot be charged in a declaration averring the promise by him in his life,-time ; it should be laid by his executors. lb. BILLS OF EXCHANGE AND PROMISSORY NOTES. 85 50. Where S. informed M. that he was about to trade for his note, and asked if M. would have any defence to it ; to which M. replied what the note was given for, and said he knew of no defence then ; held, that M. was not precluded from showing a subsequent failure of consideration of the note. Mc- Murran v. Soria, 4 How. 154. See infra, 82. 51. The fact that a note is made payable at a bank does not pre- clude the maker from setting up a defence against an assignee of the note, who is an innocent holder. lb. Vide Parham v. Randolph, 4 How. 435. A note payable at a bank is on the same footing with any other note. Allein v. Agri- cultural Bank, 3 S. & M. 48. 52. See Pleading, 57; for ef- fect of non assumpsit sworn to, plead to action on note. 53. If on inquiry the holder of paper cannot ascertain the resi dence of the indorser, the place of the dats of the bill is the proper one to send notice to ; and if the indorser has changed his residence since the execution of the bill, and the holder do not know it, notice sent to his former residence will be good ; otherwise if the holder know of the change. Wilcox v. Mitchell, 4 How. 272. 54. Where, in a joint action un- der the law of 1837, the maker and indorsers of a note were sued, and the court instructed the jury that if they were satisfied the first indorser was not duly served with notice, then they must find for the second indorser, even though duly notified ; held, that the instruction was erroneous; the discharge of the first did not operate a release of the second indorser. lb. 55. Under the act of 1836, jus- 8 tices of the peace are notaries pub* lie, and authorized to protest bills and notes. lb. 56. In a joint action under the statute, the plaintiff may discon- tinue as against the first indorser, and take judgment against the second and maker by default. Vickery v. Raster, 4 How. 293. . 57. When a judgment by de- fault is taken on a promissory note, the note itself must be produced ; but to show that it was not pro- duced, that fact must be spread upwi the' record, as the note is not a part of the record of itself. lb. 58. Joint notes are included in the act of 1837, requiring all the parties to a bill or note to be sued in one action. Lynch v. Commis- sioners of Sinking Fund, 4 How. 377. Sed aliter ; they are not so included. Thompson v. Planters Bank, 2 S. & M. 476. 59. Notes under seal are enti- tled to days of grace, and are ne- gotiable by statute. Skinner v. Collier, 4 How. 396. 60. The protest of bills of ex- change must be made out and cer- tified that the bill was presented for acceptance or payment by the no- tary himself; it cannot be done' by his agent. Carmichael v. Bank of Pennsylvania, 4 How. 567 ; Ellis V. Commercial Bank of Natchez, 7 How. 294. 61. It is not necessary to pre- sent a bill payable at a given time after date, for acceptance, but if presented and acceptance refused, the bill must be protested and no- tice given, or the parties will be discharged. lb. 62. Where bills of exchange payable at a fixed time after date, were enclosed by letter to the drawee before they were due, and he notified the holder that they 86 BILLS OF EXCHANGE AND PEOMISSORY NOTES. were not accepted, it was held a sufficient presentment and refusal to accept ; presentment need not be made by a notary ; it can be made by anybody ; but the notary must present the bill also before his protect is made. lb. 63. Whether the conversations of an indorser amount to a waiver of notice of protest, is a question of fact for the jury, and not of law for the court, lb. 64. See Usury, 1, for effect of calculating interest on notes by Eowlett's Tables. 65. See Contract, 32 ; defence of failure of consideration, existing to old note, may be made to note given in renewal of it. 66. The record of a notary, of the protest of a note and notice to the indorsers subscribed by the no- tary, with his oath before a justice of the peace of its truth, appended to it, is, under the statute, evidence of such demand and notice, and where the notary is dead it is evi- dence at common law. Ogden v. Glidewell, 5 How. 179. It is not evidence, if the notary be living, unless verified by oath. Dorsey v. Merritt, 6 How: 390. And it makes no difference whether such recol'd be made out at the time of protest or not; the notarial certificate of a note protested on the 16th of March, 1839, which was made out, certified and sworn to on the 20th day of April of the same year, will be evidence un- der the statute. Fleming v. Ful- ton, 6 How. 473. So also it is good if made out two years after- ward. Grimball v. Marshall, 3 S. & M. 359. So also even though it be proved that such notarial cer- tificate was the only record ever kept by the notary of his acts in the premises. Booth v. Watson, 5 S. & M. 295. Such record is not, however, evidence under the statute, in the county where the notary resides. Street v. Kellogg, 7 How. 342. And where it ap- pears by the certificate that the notary is a citizen of the county where the suit is pending, a gene- ral objection to its admissibility will be sufficient, without specify- ing the particular ground of the objection ; but if it were read without any objection below, no objection could be taken to it in the high court. Such notarial records are not conclusive ; they may be impeached ; the protest under the statute is conclusive evidence of the protest ; but the notary's cer- tificate serves but the ofiice of or- dinary deposition, and is in no re- spect on higher ground, and may be impeached by showing that the notary was not entitled to credibil- ity ; or by showing particular facts with reference to the notary's mode of preparing and making out his certificates, and altering his records and preparing blank affidavits to be appended to each case as they might be needed. Wood v. Amer- ican Life Ins. Co. 7 How. 609. The notarial records of notaries in other states, made out according to our act, are not evidence in this state ; our statute applies only to the notaries of this state. White V. Englehard, 2- S. & M. 38. 67. A promissory note drawn by A. as principal, and B., C. and D. as sureties, made payable to a bank for the purpose of being dis- counted by that bank, to raise money for the accommodation of the principal, and which the bank re- fused to discount, is passed by A. to E., who advanced to A. a sum of money on it; held, that E. could recover against A. and the BILLS OF EXCHANGE AND PROMISSORY NOTES. 87 sureties to the note, in action at law against them on the note in favor of the bank for his use. Commercial Bank of Natchez v. Claiborne, 5 How. 301. And where a note is made payable to a bank, though it never belonged to the bank, the holder may sue on it in the name of the bank for his own use, and show by proof that the bank never owned it. Graves v. Mississippi 8j- Alabama Railroad Co. 6 How. 548. A4| may thus resist an offset of the notes of the bank to which the note sued on is payable. Trible V. Bank of Grenada, 2 S. & M. 523. 68. Where a note is made pay- able at a bank-house, the usage and customs of the bank, with re- ference to notes payable thereat, constitute a part of the contract ; where, therefore, by the usage of a bank, all persons, having notes payable there, are allowed until the expiration of banking hours for payment, a demand of pay^ ment at the bank on the day of the maturity, during banking hours, and before their expiration, is in- sufficient ; unless the note is per- mitted to remain in bank until the close of the banking hours. Plant- ers Bank v. Markham, 5 How. 397. This custom is as obligatory on the one party as on the other ; where, therefore, it was the custom of the bank to consider notes dishon- ored that lay in bank all the day of maturity without any formal demand of payment ; no demand will be necessary to bind the in- dorsers. Cohea v. Hunt, 2 S. & M. 227. Semhle, Smith v. Gibbs, 2 S. & M. 479. Notes made pay- able at banks being thus governed by the customs of the banks, a greater strictness ought to be ob- served in making demand of pay- ment at a bank than is necessary in personal demands ; a personal demand may be made at any time during the day, but one at a bank must be made at the close of bank- ing hours, because the maker has until that time to deposit the money for the payment of the note ; it is not necessary that the note should be deposited in the bank at -which it is payable ; if it be pre- sented there at the close of busi- ness hours it vi^ill be sufficient ; the law does not prescribe impractica- ble rules ; it is not therefore abso- lutely essential that' the note shall be presented at the very moment of closing the! doors of the bank ; probably a few minutes would be regarded as of little consequence in the application of the rule ; where, therefore, the notary testi- fied that he had no recollection of the fact or time of presentment, except from his protest, from which he had no doubt that he did present the note ; that when he protested the note his habit was to make de- mand of payment aiout the close of banking hours, believing that practice to conform to the law ; when payment was refused he took the note away with him ; he could not say whether the note was pre- sented an hour or a minute before the close of the bank except from his habit : held, that the testimony should have been left to the jury for them to say .whether the de- mand on the note had been made about the close of banking hours. Harrison v. Crowder, 6 S. & M. 464. The instruction of the court, therefore, in such a case, that " a demand of payment in some rea- sonable or convenient time before the doors were closed *rould be suf- ficient," would be erroneous. lb. 88 BILLS OF EXCHANGE AND PROMISSORY NOTES. 69. Under the statute of this state, of 1837, requiring the holder to sue the .drawers and indorsers of negotiable instruments in one action, to be- brought in the county where the maker resides, or if he is out of the state, where the first indorser resides; the plaintiff cannot, in a suit on a note against maker and indorsers after process served, discontinue as to the maker, and take judgment against the in- paid ; held, that such maker there- by waived any defence he might have against the note in the hands of such assignees. Land v. La- coste, 5 How. 471. 73. It is not material in what precise form of words the notice of noD payment is conveyed to the indorser ; it will be sufficient if it put him on the inquiry ; where, therefore, a notary having testified to the demand, testified also that on dorsers. Wilkinson v. Tiffany, 5Mie same day he gave notice thereof How. 411 ; Boush v. Smith, 2 S & M. 512. 70. An indorsement on a note may be stricken out, even at the trial, if necessary. Planters Bank v. Chewning, 5 How. 413. 71. L. made his note payable to C. & D., who indorsed it to E., who indorsed it to F. & D., who indorsed it to C. & M., who in- dorsed it to P., who sued all the parties tothe note except C' & M,, their indorsement being erased from the note ; D. being a member of the firm of C. & D. and of F. & D. ; arfd C. being a member of the firm of C. & D. and of C. • & M. ; it was held by the court that P. could maintain the action against them all ; and that the case was not analogous to those in which indorsers are discharged ^by the note falling into the hands of the maker or prior indorser. lb. 72. Where the maker of a note, when first applied to by one about to trade for it, answered that the note was given for a tract of land, and there was ^ome ^difficulty about the title, and would not admit the validity of the note, upon which the party refused to trade for it, and subsequently the maker informed the party about to become assignee that the difficulty was re- moved, and the note would be to the indorser ; held, on demurrer to the evidence, that the court would infer a legal notice had teen given. Chewning v. Gatewood, 5 How. 552. 74. The assignee, by indorse- ment in blank of a note, may sue the maker and other, indorsers up- on it without filling up the blank, lb. 75. M. & E. bought a piece of ground of W., and before execut- ing their notes they sold half of it to H. and agreed with W. to ex- ecute their note indorsed by H. for the half they kept, and for the half H. took, H.'s note indorsed by them, which was agreed to and done ; M. & E. being sued on their indorsement on H.'s note, it was held, that they were entitled to no- tice of the demand on, and refusal of, H. to pay the note. Moore V. Brungard, 5 How. 557. 76. The words " in liquidation" added to the signature of a firm to a note, form no part of the note and need not be noticed in the de- claration. Fairchild v. Grand Gulf Bank, 5 How. 597. 77. In an action on a note against the members of a firm as princi- pals and others as sureties, if one of the partners plead non assumpsit under oath ; it will be equivalent to denying the partnership, and if there be no proof of his being a BILLS OF EXCHANGE AND PROMISSOEY NOTES. 89 partner, the jury must find for him ; but if the others plead the general issue, they thereby admit the part- nership and the execution of the note, and they will be held liable notwithstanding the discharge by the Verdict of the jury of the one who plead under oath. 11. 78. See Evidence 217 ; how far joint maker of a note is a compe- tent witness for the indorser where they are all sued in one action. mon law ; and the right to make the defence may'be waived by the maker ; where therefore a party about to purchase a note went to the maker to ascertain if he could be safe in so doing, and was an- swered that the note was good ; that there was no difficulty about it, and that it would be paid at maturity, it was held, that the maker could not set up a failure of consideration to the note in the hands of an inno- 79. Where C. & J. are sued accent holder, who received it on the indorsers and partners, and they plead the general issue not under oath, it is incompetent for them ,to show that J. indorsed the note for the accommodation of the makers, without the consent of C. who was not therefore bound by it. Wade V. Stanton, 5i How. 631. 80. The accommodation indorser of a bill of exchange, who has given the holder potice to sue the drawer, and the holder, fails to sue the drawer until he becomes in- solvent, is not by such neglect dis- charged from his liability on the bill ; the holder of the bill has a distinct right against each party to it, and may enforce it against any one or all, by the common law, and might sue the accommodation indorser alone, without suing the drawer. Bullitt v. Thatcher, 5 How. 689. 81. The statute of 1837 requir- ing all the parties to a bill "of exchange to be sued in one action, does not apply to the case of a bill where the drawer is a non-resident. lb. 82. By the statute in this state, authorizing the makers of notes to plead failure of "consideration, &c. to them, in the hands of assignees, which happened previous to notice of the assignment, notes are placed on a footing with bonds at the com- 8* faith of such promise ; even though the maker did not know that the consideration of the note had failed at the time he gave the assurance of payment ; but in such case it must appear that the maker had reason to suppose that the person who made the inquiry made it with a view to purchase the note ; which is a fact that may be proved by circumstantial testimony. Hamer v. Johnston, 5 How. 698. So also if the maker admit his lia- bility and promise to pay, and the assignee thereupon trades for it, he cannot set up a failure of con- sideration. Montgomery v. Dil- lingham, 3 S. & M. 647. Assur- ances of payment made to the as- signee before assignment, will be a waiver. ^ Ayre^ v. Mitchell, 3 S. &M.683. , . 83. Where two separate suits were brought against the drawer and indorser of a promissory note, and judgments had and forthcoming bonds given in each case, the bond against the maker having been given and forfeited prior to that by the indorser, the forfeiture of the bond against the maker will not operate as a satisfaction of the judgment against the security, in- asmuch as the judgments were separate and in. separate suits ; but the rule would be different whea 90 BILLS OF EXCHANGE AND PROMISSORY NOTES. the judgment is joint on a joint or a joint and several liability. McNv.tt V. Wilcox, 3 How. 417. 84. Where parties are sued as the makers of a note, it is compe- tent for them to show that a bond WEis executed by the same parties, payable to the same parties, for the same sum, of the same date, condi- tioned for the delivery by the obli- gors, who were also makers of the note, of cotton to the obligees, be- ing the payees of the note ; it will be left for the jury to say, whether the bond was given for the same debt secured by the note ; if it was the note would be prima facie merged in the bond, as a debt of higher dignity ; and, in order to sus- tain the action on the note, the plaintiffs would have to show that the bond was taken merely as collate- ral. Myers v. Oglesby, 6 How. 46. 85. A note for the payment of four hundred and ninety-five dol- lars, in cotton, at twelve cents per pound, at a future day, and at a particular place, is a promissory note, and may be declared on as such ; the maker has the privilege of discharging it in cotton; if the holder sue upon it as a promissory note, alleging as a breach a failure to pay, and the defendant demur, the! judgment will be final on the demurrer, without the intervention of a writ of inquiry and a jury. Rankin v. Sanders, 6 How. 52. 86. Where the payee of a note wrote his name immediately under the maker's, ^nd passed the note off to a third person, in a suit on the note against the payee eis a joint maker, it will be a good plea in bar of the action that he signed the note for the purpose of transferring and indorsing it, and as indorser, and not maker ; for a party may indorse a note on its face, as well as on its back ; and on proof that the party signed it as indorser he cannot be charged as maker. Gibson v. Powi ell, 6 How. 60. 87. Where a note has been changed since its execution, by al- tering the time of payment from the year 1837 to the year 1838, without the consent of the parties making it, they will be discharged, ,nd such alteration operating as a ischarge by matter subsequent to the execution of the note, it is not necessary to deny -the execution of the note, under oath ; the eviden6e of alteration may be given under the ordinary plea of non assumpsit. Henderson v. Wilson, 6 How. 65. 88. Days of grace, like interest, are incidents to a promissory note ; where, therefore, a bank was au- thorized to discount notes, having four months to run, at seven per cent. ; a note due at four months, excluding the days of grace, will be included in the four month' notes. Fomiquet v. West Feliciana .Rail- road 'Co. 6 How. 1 ] 6. 89. The maker of a note, against whom a judgment has been ren- dered, is a competent witness in a suit between the indorsee and in- dorser of the same note, to prove that it has been paid. Routh v. Helm, 6 How. 127. 90. An indorser, who receives from the maker of the note a mort- gage, as indemnity for the indorse- ment, thereby dispenses with the necessity for the proof of demand and notice, to bind him ; and in such case it is not competent for the indorser to show that the in- demnity was insufficient; especial- ly where the indorser, before suit brought, voluntarily relinquished a great part of his security. Watt v. ■ Mitchell, 6 How. 131. BILLS OF EXCHANGE AND PEOMISSOEY NOTES. ^1 91. Where A. had, during the absence of B. from the state, been his agent, under power of attorney, to attend to all his business, and after B.'s return had been in the regular habit of receiving at the post-office all letters for B. and taking them to his own office, where B. called regularly to receive them, and A.'s authority had always been acquiesced in, and he had some- times opened letters to B. and at- tended to them, and had occasion- ally received notices of protest for B. and handed them to him, and the jury had rendered a verdict against B., in a , suit on a note in- dorsed by B., where the notice of protest had been handed to A. who could not state that he had received and delivered the notice to B., but said, if it had heen delivered to him he gave it to B. ; held, the jury having passed on the agency of A., this court could not disturb the ver- dict. Wilkins v. Commercial Bank of Natchez, 6 How. 217. 92. J. L. and T. F. were sued as makers of a note, dated "Com- mercial Bank of Rodney, Eodney, Miss. ;" marked " post note," and promising to pay one hundred dol- lars, six months after date, to W. or bearer, " at the bank in Rod- ney,", and signed " T. F., Presi- dent;" and countersigned " J. L., Cashier ;" the defendants plead non assumpsit ; held, that the note was ■prima facie a good cause of action against J. L. and T. F. and should be admitted to the jury as such, sub- ject to be explained. Fitch v. Law- ton, 6 How. 371. 93. To a note made by B. and S. and M. and others, payable to D. S. ; a suit was brought in the name of D. S., use of P., against B. alone, who plead in abatement that P., the usee, was jointly liable for the payment of the debt ; the note having been given for a part- nership matter, and P. having as- sumed the place of S. in the part- nership, and agreed to pay his share of the debts, and that D. S. had no interest in the note ; held^ that the plea was bad, in form and sub- stance, it should have heen in bar, not ifi abatement ; and presented no defence to the action at law in favor of D. S., for the use of P. ; for though P. might in equity be jointly liable for part of the note, it was not a joint legal liability, and therefore P. did not stand in the attitude of both plaintiff and de- fendant at law. Stone v. Brooks, 6 How. 373. 94. Where the suit is commenced jointly, under the statute of 1837. against the makers and indorsers of a promissory note, and the ma- ker has given a forthcoming bond, the indorser is not thereby estopped from prosecuting his writ of error, to reverse the judgment as to him. Whether such judgment would be binding on the indorser, after the forfeiture of the maker's bond, qucere? Dorsey v. Merritt, 6 How. 390. 95. Where the third day of grace falls on Sunday, payment of the note should be demanded on Sat- urday, and notice given on Monday will be in time. Fleming v. Ful- ton, 6 How. 473 ; Barlow v. Plan- ters Bank, 7 How. 129. 96. Where there is no contrari- ety of testimony, it will not be irregular for- the court to instruct the jury that the evidence of de- mand and protest adduced was suf- ficient to charge the indorsers. Ih. 97. Where a note was payable at a bank which had regular bank- ing hours, and the notarial record, offered in evidence of protest, stated 92 BILLS OP EXCHANGE AND PROMISSORY NOTES. that on such a day, without naming the hour, demand was made, it was held that the notary, being a sworn officer, made the demand at the legal time, in the absence of any evi- dence shewing to the contrary, lb. 98. In this state promissory notes are entitled to three days of grace. li. 99. An order by A. in fayor of B. upon C, to pay a certain sum of money out of a particular fund, is not a bill of exchange, but is an equitable assignment of so much of the fund, and in equity the as- signee will be protected, even though the bailee or debtor had not assented thereto ; much more so if the debtor has assented. Fitch V. Stamps, 6 How. 495. 100. And it seems whese such an order is drawn and accepted, the assignee will not be compelled, in a suit against the acceptors, to prove the consideration of the or- der ; our statute making all instru- ments for the payment of money assignable, changes the rule on the subject and requiring the ac- ceptor to shew a failure of consid- eration, if any. lb. 101. A note made by A, paya- ble to B. at a Bank, is not thereby made payable in the notes of such bank, and a tender of such notes will not be a legal tender. Bull v. Harrell, 7 How. 9. 102. Where a note was made payable " twenty four after date,^'' and the declaration on it averred that it was designed to be payable twentyrfour months after date ; held that the note was not void for un- certainty, and was competent testi- mony, under the declaration, to go- before the jury, either by itself or with other proof of the mistake, for them to say whether the mis- take was as alleged, and if they so I find on the note alone, without other testimony, theif verdict will not be disturbed. Conner v. Rovth, 7 How. 176. 103. .Where a note is made by an agent, in the name of his principal, and the principal is sued ; under the act of 1824, if he wish to deny the agency, he must do so by plea supported by affidavit ; the plea of general issue admits the execution of the note, whether the pa^ty defendant be the maker of the note or his adminis- trator. . Ellis V. Planters Bank, 7 How. 235; Hemphill v. The Bank of Alabama, 6 S. & M. 44. 104. If the holder of a protested bill or note place the notice of pro- test in the post office in due time, it is legal diligence,^nd he is not responsible for -any defects in the regulation of the mails, or for the time which elapses from its deposit in the office and its delivery. Ellis V. Commercial Bank of Natchez, 7 How. 294. 105. The agent of the holder is allowed one day to give notice to his principal of a default, and the principal to one day after he (re- ceives the notice, to give or for- ward notice by mail to the drawer or indorser. lb. 106. Whether the statement of the notary that " he went to the counting house of the acceptor, found it shut up and no person liere to answer for the payment," is a le- gal excuse for not making demand, without proof of inquiry in the neighborhood } Quaere 1 lb. 107. Must the demand and pro- test of a note be made according to the law of the place where the bill is payable } lb. 108. Where a note is payable in current bank notes, the meeisure of damages is the value of the cur- BILLS OF EXCHANGE AND PROMISSORY NOTES. 93 reht notes, in specie, at the time payraent should have been made. Bonnell v. Covington, 7 How. 322 , Jennings v. Summers, 7 How. 453 ; Gordon v. Parker, 2 S. & M. 485 ; Lanier v. Trigg, 6 S. & M. 641. 109. Where to a suit, on a note payable in the current bank notes of a particular bank, the defendant plead a tender of the notes of that bank, the plea will be bad if it do not aver that such notes were cur- rent at the time. Ih. The plea will be bad if it do not aver a tender at the time the note matured, because the value at that time is the -meas- ure of damages, and a tender in notes at a subsequent time will not be good ; the plea must also avelr a continual state of readiness to pay the sum due, since the tender ; for though the defendant, under such averment, may not be able to show its truth, yet its introduction ena- bles the plaintiff to show, if the fact be so, that upon a subsequent de- mand,- the defendant had failed to pay, which would defeat the de- fence. 6 S. & M. 641. 110. See Set-off \\, for what is sufficient set-on against payee where a note has been assigned, and what is evidence of 'assignment. 111. Inland bUls of exchange, possessed previous to notice of the assignment, are included in the stat- ute which allows set-offs, they be- ing embraced in the words in the statute, " all other writings for the payment of money.'''' Kershaw V. Merchants Bank of N. Y.,1 How. 386. 112. See Set-off, 11 ; where the acceptbr of a bill was allowed, as an offset to a suit by the assignee of the payee, his liability for the payee under a levy on the accep- tor's slaves, by virtue of a judg- ment against the acceptor, as surety for the payee, on a different debt ; the levy being made previous to notice of the assignment. Ih. 1 13. Whether, in an action on a joint note, one of the defendants may obtain a separate trial from the others : Quare 7 Commercial 4- Railroad Bank of Vickshurg v. turn, 7 How. 414. 1 14. The joint maker of a note, who is sued with his co-makers, is not a competent witness for one of his co-makers, who has obtained a separate trials without a release from his oo:makers, of their claim to contribution ; he is also incompe- tent, as being liable for costs. lb. 115. Whether the alteration of a promissory note was made before or after execution and delivery, is a question of fact for the jury ; but if the alteration appear on the face of the note, the presumption of law is, that it was made after delivery, and the holder must prove that it was altered under circumstances which will make it still available. lb. 116. A bank which receives a note or bill for collection, is bound to use due and proper diligence in making demand and giving notice so as to hold all parties liable, and in default of such diligence, the bank becomes liable to the party who depositedthe note. Whether delivering such a note to a notary in proper time, is sufficient ; quare ? Commercial and Railroad Bank v. ■Hamer, 7 How. 448. See the case of Tiernan v. The Commercial Bank of Natchez, 7 How. 648 ; where the question of the liability of the bank which had placed a bill lodged with it for collection in the hands of a notary to protest and give the reg- ular notices, and the notary had failed to do so ; it was held, that the bank was not liable ; the 94 BILLS OF EXCHANGE AND PEOMISSORY NOTES. notary was a public officer whose duty it was to make demands and give notices ; and the bank being an agent with power to appoint a sub- agent would only be liable for not selecting a proper person for such sub-agent ; but the notary vir- tute officii, is a proper person. A bank which receives a note for col- lection, and places it in the hands of a notary in time for demand and pro- test, is not liable for any loss on ac- count of the negligence of the no- tary ; in undertaking the collec- tion of the note, the bank becomes the agent of the owner, and is bound to use only reasonable skill and ordinary diligence, and when the note is placed in the hands of a notary for demand and protest, the notary becimes a sub-agent, for whose negligence the agent is not responsible if he has used reasona ble diligence in his choice as to the skill and ability of the sub-agent ; and in an action against a bank for neglecting to make demand and give notice of non-payment of a note left with it for collection, on proof that it delivered the note to a notary, the bank is prima facie, exonerated from liability, and to re- but such prima facie case it is not sufficient for the plaintiff to prove in general terms that the notary was a -man of dissipated habits ; he must establish the negligence niore definitely by proof that the notary was drunk at the time the note was given to him, or that his habits were so universally intemperate as to disqualify him for the discharge of an official act. Agricultural Bank v. Commercial Bank ofMancJiester, 7 S. & M. 592. 117. Where a note was payable at a bank, and the notary did not make demand during banking hours, but afterwards, when the front door of the bank was closed, went in at the back door, and find- ing the teller in the bank, demanded payment of him, who refused it, stating that there were no funds there for that purpose, and there had been none during the day ; held, to be a good demand of -pay- ment, lb. Cohea v. Hunt, 2 S. & M. 227. 118. He who signs a bill -or note in blank, and dehors it to another, makes him his agent, and author- izes him to fill it up with any sum ; if the party making the blank sig- nature, authorize it to be filled up with a limited sum, and the holder exceed the authority, and a third person receive the note with the knowledge, that the authority was limited, and had been transcended, the note will be void only as to the excess ; it Will be valid for the sum authorized. Johnson v.' Blasddle, 1 S. & M. 17 ; Hemphill v. Bank of Alabama, 6 S. & M. 44. 1 19. A. signs a note in blank as surety for B., and authorizes B. to fill it up with the amount of B.'s intended purchases from C, provid- ed it do not exceed a certain sum ; B. makes a purchase, and fills up the blanlc with the amount of his own purchase, and of D.'s purchase from C. also ; B. and D.'s purcha- ses combined, being within the limit fixed by A. ; C. having full knowledge of the nature and ex- tent of B.'s authority ; held, that as to A. the consideration of the note had failed to the extent of D.'s purchase only, and that these facts create no presumption of fraud on the part of C. to prevent his recov- ery against A. to the extent of B.'s purchase. lb. 120. An assignee is affected by the fraud of his assignor, and takes the note subject to it ; as where the BILLS OF EXCHANGE AND PROMISSORY NOTES. 95 assignor of a note given him for land had made a fraudulent repre- sentation of title. Barringer v. NesUt, 1 S. & M. 22. 121. See Evidence, 124; cor- respondence of dates and amounts between note and certificate of stock, evidence that one was the consideration of the other. 122. See Usury, 15; where note payable in Louisiana, bears ten per cent, interest. 123. A bank may indorse a note by its cashier. Harper v. Calhoun, 7 How. 203 ; Crockett v. Young, 1 S. &M. 241. • 124. In order to constitute a suf- ficient notice to charge an indorser if it is to be sent by mail, it must at farthest, be put into the post-ofEce in time to go by the mail of the day next succeeding the protest, if there be a mail which goes on that day, and if not then by the first mail which goes afterward ; the notice need not be put in the post-ofEce on the same day the note is protested , but must be' on the next day in time for the mail of that day, unless it leave at an unusually early hour. Dovms V. Planters Bank, 1 S. & M. 261. Sunrise is an unreasona- bly early hour. Deminds v. Kirk- man, 1 S. & M. 644. Hoopes v. Newman, 2 S. & M. 71. So also where the mail is closed the night of the day of protest, that leaves the morning after, the notice need not be sent by that mail. Wemple v. Dangerfield,- 2 S. & M. 445. 125. The holder of a note must prove distinctly and by positive proof, everything to charge the in- dorser ; proof,, therefore, that no- tice was sent by mail to an indorser by nine o'clock of the day succeed- ing the proteat,-without showing that no mail went out on that day, at an earlier hour, is insufficient to charge the indorser. Downs v. Planters Bank, 1 S. & M. 261. 126. The note is not part of the record, but must be made so by bill of exceptions ; the certificate of the clerk that the note differs from the one described will not be regarded. Barf eld v. Impson, 1 S. & M. 326. 127. The surviving maker of a note cannot be sued jointly with the executor of the one who died. Poole V. McLeod, 1 S. & M. 391. 128. An order payable out of a particular fund, is not a bill of ex- change. Van Vacter v. Flack, 1 S. & M. 393. 129. In an action against the ac- ceptor of an order payable out of certain notes in the hands of the acceptor for collection, the plaintiff' must aver and prove the collection .of the notes. lb. If the acceptor collect the currency of the state, which afterwards depreciates, it will be no defence to offer to pay the money collected, to the holder of the order ; the holder will be enti- tled to collect par money. Van Vacter v. Brewster, 1 S. & M. 400. 130. Where the makers of a note had delivered forty bales of cotton to the holder, in part payment of the note, in absence of proof of a special contract, the makers may prove the market value of the cot- ton at the place of delivery ; aliter if there had been a special contract. Phillips V. Commercial Bank of Manchester, 1 S. & M. 636. 131. See Bank,2l. Wherenote is payable to bank, proof that its notes at maturity were below par, inadmissible. 132. A note signed by A. B. and C. D., guardians, may be sued up- on as the individual note of A. B. and C. D. Robertson v. Banks, 1 S. & M. 666. > 133. If after reasonable diligence 96 BILLS OF EXCHANGE AND PROMISSORY NOTES. on' the part of the holdei', the resi- dence of the indorser cannot be as- certained, an excuse is furnished for a failure to give notice ; the question of diligence must be de- termined by the jury from the evi- dence. Hoopes V. Newman, 2 S. &'M. 7a. 134. Whether, if the declaration aver that notice was given to the in- dorser, proof that diligent search was made for his residence in vain, will support the averment ; quare ? lb. 135. See Defeasance,!. Where note is given for land, and the deed provides the note may be paid in bank notes, it is a defeasance, and must be strictly complied with. 136. Where the record of a de- ceased notary contained these words, " Notices to J. G. Post," held, that they were properly admissible to the consideration of the jury to prove notice of protest to J. G. ; ,but the clerk of the notary cannot be per^ mitted to show what meaning the notary intended thereby. Duncan v. Watson, 2 S. & M. 121. 137. A letter from ' the defend- ant, sued as the indorser of a note, on' the subject of arranging a note without specifying what particular note, with the plaintiff, is compe tent testimony, with other proof, for the consideration of the jury on the' question of notice. lb. 138. Where an executor or ad- ministrator is sued upon an indorse- ment of a note made by his testa- tor or intestate that matured after his death, and since their appoint-' ment, it is compistent ^to prove the admissions of such executor or ad- ministrator, that he received notice of the protest, unless the executor or administrator is in readiness at the time of trial and announces his willingness to testify in the case . lb. 139. No demand and notice are necessary to fix the liability 'of the guarantor of a note. He must prove negligence on the part of the holder, and consequent damage to himself, to entitle him to a dis- charge ; and if such demand and notice are alleged, it is but surplus- age and the allegation need not be proved. Thrash/er v. Ely, 2 S. & M. 139. 140. If all the parties to a note indorsed after maturity reside in or near the same place, should pay- ment be demanded and notice given to the indorser onlhe same or the next day after the note is received in order to fix his liability ? It seems a demand on the next day after is sufficient, and if that day be Sun- day, a demand on Monday wili be in time. Partner v. Parham, 2 S. & M. 151. 141 . The notary, on the day after the note was protested, met the clerk of the indorsers in the streets of the town where they lived, with- out having called either at their boarding-house or place of busi- ness, and gave the notice to the clerk, and requested him to deliver it to them ; there was no evidence that their clerk was their agent to receive notices, or that he was in the habit of attending to such busi- ness, or that he delivered the notice to them ; held to be insufficient ilo- tice to the indorsers to bind them. lb. 142. Notice, to be binding, must Ije given on the same or the day after -the dishonor of the note. Tb. 143. See Evidence, 233 ; one indorser not witness for the other in joint action under statute. 144. The act of 1837, requiring all the parties to a note to be sued in a joint action, does not apply to a note never indorsed ; in such case the holder may sue any one. or more BILLS OF EXCHANGE AND PROMISSORY NOTES. 97 of the makers. Thompson v. Plant- ers Bank, 2 S. & M. 476. 145w The protest of a promissory note is no evidence of tlie demand of payment of the note, for the law does not require that the note should be protested. Smithy. Gibbs, 2 S. & M. 479. 146. A protest stating that pay- ment was demanded, but saying no- thing as to presentment, is defective on its face and inadmissible. lb. 147. Where it is in proof that the notary's clerk made the demand of payment, and the protest states that the notary made it, the protest should be ruled out as evidence, or the jury be instructed to disregard it. lb. 148. Where the clerk of the no- tary testified that he made the de- mand of payment of the note sued on, without specifying how or when, it was held not to be sufficient evi- dence of a legal demand. lb. 149. Where all the parties to a note are sued, and the declaratton is good against the maker but bad against the indorsers, and is demur- red to, the plaintiff, on discontinu- ing as to the indorsers, will be en- titled to a judgment on the demur- rer as against the maker. Kirk v. Seawell, 2 S. & M.- 571. . 150. The payment of a note by the maker to the payee without its production and delivery, in the ab- sence of notice of its assignment, is a valid payment ; but if the payee or holder, after such payment, as- sign it, he will be liable to the as- signee, though the maker and any previous indorser would not be. Al- lein V. The Agricultural Bank, 3 S. & M. 48. 151. It is incumbent on the hold- er of an indorsed note, before he can charge the indorsers, to prove demand and notice with a reasona- 9 ble degree of certainty ; positive proof is never absolutely required. Bland v. Com. and Railroad Bank, 3 S. & M. 250 ; yet the fact of no- tice must be affirmatively proved, and not left to inference or pre- sumption. Am.. Life Ins. and Trust Co. v. Emerson, 4 S. & M. 177. 152. Where the notary who pro- tested the note was dead, and a witness testified that at the request of the notary, about the time the note sued on fell due, he gave per- sonal notice to the indorser of the non-payment of some note, made and indorsed by the persons sued, the precise date and amount of which he could not recollect, on the day it was protested, it was held, with proper evidence of demand, sufficient to uphold a verdict for plaintiff Bland v. Com. and Rail- road Bank, 3 S. & M. 250. 153. Upon a note given at par for money then at a discount, the full amount cannot be recovered, and the defendant rnay compel the plaintiff to disclose the considera- tion of the note by bill of discovery. Scott v.'Hamblin, 3 S. & M. 285. 154. In an action on a lost note in the name of the payee, for the use of a third party, where the de- fendant pleads, on oath, that the usee has no right, title or interest in or to the note sued on, it is necessary for the usee to prove his interest before he can recover. Moore v. Anderson, 3 S. ds M. 321. 155. As between the assignee and maker of a note, it is imma- terial what the assignee gave his assignor for it ; and if proof is al- lowed on that point to go to the jury and is excepted to, it will be error, and the judgment will be re- versed. Turner v. Brown, 3 S. & M. 425. 156. See Banks, ^c, 27 ; act 98 BILLS OF EXCHANGE AND PROMISSORY NOTES. prohibiting banks to assign their notes constitutional. 157. Where the payee of a note has assigned it, and the maker has not paid it at maturity, the payee can take the note up and sue the maker thereon, and any claim the maker has against the assignee will not be an offset against the payee, as the statute allowing the maker- the benefit of all offsets, &c., previous to notice of the assignment, did not extend to the assignee ; and it would make no difference if such assignee were a bank ; the notes of the bank, though held by the maker previous to the maturity of the note, and while it was the property of the bank, would be no offset against the payee. Maury v. Jeffers, 4 S & M. 87. 158. See Execution, 57 ; for the duty of the sheriff in levying exe- cution on the property of the par- ties to a note or bill, according to their position, and for a construction of the ^ct of 1,837, thereon. 159. A bill of exchange was pro- tested in New York on the 18th of February, and the notices of pro- test enclosed to the last indorser, who was the holder for collection at Natchez, in this state, who re- ceived them on the 3d of March, ensuing, and on . the 6th of that month gave the prior indorser per- sonal notice ; held insufficient ; it should have been given on the fourth. American Life Insurance and Trust Company v. Emerson, 4 S. &. M. 177. 160. Whether, where the holder of a bill residing in this state sends the bill to a distant state where it is payable, for payment, and it is protested, and the indorser resides neither in this . state nor the one where the bill was protested, the I notary can transmit the notices of] protest to the holder in this state to be by him forwarded to the in- dorser, or must forward them him- self. Qucere. II. 161. See Partreer, 22 ; an agree- ment by one partner to acknow- ledge notice in a particular way will bind his co-partners. 162. Notice to one partner of the ' non-payment of a note indorsed by the firm is notice to all ; so also notice to a surviving partner will entitle the holder of the note to re- cover in an action against the rep- resentatives of the deceased part- ner, even though the deceased part- ner was dead before the maturity of the note and the holder knew that fact. Dabney v. Stidger, 4 S. & M. 749. 163. Joint payees who severally indorse a note, are each entitled to notice of non-payment. lb. 164. A notice of protest de- scribing the note protested as one dollar less in amount than it really waft, but in other respects properly describing the note, is sufficient to uphold the verdict of a jury against the indorser, predicated on such no- tice ; but whether a notice barely sufficient in its description to put the indorser on the inquiry or which describes the note properly in other respects but states a demand on the wrong day, will be sufficient. Qucere. Rowan v. Odenheimer, 5 S. & M. 44. 165. The deposition of a notary that he protested a note, in all re- spects similar to the one sued on, except that the notary described it as for one dollar greater in amount than the one sued for ; that on the day after the protest he gave the indorser notice by leaving it at his store, but he could not say at what hour of the day nor with whom ; that he had a record of his notarial action made out by his clerk, who .BILLS OF EXCHANGE AND PROMISSORY NOTES. 99 might also have written the notice' of protest, as he had no recollection of it, nor of ever having compared it with the note protested ; that his notarial record was signed by him- self, though filled out by the clerk, who was in the habit, when the wit- ness returned from giving notices, of writing down what he had done, when the witness would sign it ; and that his statement of the time of the service of the notice of protest was based on his usual practice and not on recollection ; held, that the testimony was sufficient to uphold a verdict against the indorser. II. 166. In an action upon a lost note, the affidavit of the plaintiff, of its loss, though competent as ad- dressed to the court, to lay the foundation for the introduction of secondary evidence of its contents, is incompetent as proof to support the issue before the jury ; but if such affidavit be read and there be ample other proof of the character and contents of the note before the jury, the error will not vitiate the ver- dict. Davis V. Black, 5 S. & M. 226. 167. Where the maker of a note promised the holder to pay it, such promise dispenses with proof of title in the holder, and is prima facie evidence of ownership in him ; where, therefore, in an action by B. against D. on a lost note, G. testi- fied that he had indorsed the note in blank to S. and B. ; and H. testi- fied that after the indorsement to S. and B., D. promised to pay B. the note ; held., that D.'s promise was sufficient evidence of B.'s right to the note and of his having pro- cured an assignment of S.'s in- terest. Ih. 168. U. the payee of a note made by S. indorsed it to W. by the following indorsement : " S. will be so good as to pay the within note to W. ; and if you cannot pay it, settle it with him, as he may wish you to do for me ; " U. died a few days after ; held, that the indorsement was sufficient to en- able W. to sue S. in his own name ; but whether it was an absolute as- signment of the note to W. or merely for U.'s use .' Qiiare ? Sims v. Wilkins, 5 S. & M. 234. • 169. A note payable to a firm, and indorsed by but one of the firm, as a general rule, cannot be sued upon by the assignee ; but where the maker of the note and the indorser are sued together, and the maker of the note makes no ob- jection to the suit, and proof is made that the indorser indorsed it after maturity, and promised to pay it, held, that the action as against the indorser could be maintained by the indorsee ; where, therefore, T. made his note payable to M. and A. joihtly, which was indorsed by A. alone to S. M., who sued T. and A. in a joint action, and judgment by default was rendered against T. but A. plead ; S. M. filed a bill of discovery against A. alleging , that A. assigned the note to him after due, and promised he would pay it if T. did not, and promised a second time to pay it after T. refused ; which bill was taken for confessed, and verdict rendered against A. ; held, that the action was well brought as against A., and the as- signment after due and promise to pay, dispensed with the proof of de- mand and notice, and that the ver- dict was correct. Moore v. Ayres, 5 S. & M. 310. 170. An allegation, in a declara- tion against the indorser of a note, of demand and notice, is sustained by proof of a promise to pay after maturity, by the indorser. Ih. 171. A note, payable in the cur- 100 BILLS OF EXCHANGE AND PKOMISSORY NOTES, rency of the state of Mississippi, is payable in specie ; to an action, therefore, on such a note, the de- fendant's plea that he was ready at the time and place to pay the note in the notes of the Mississippi bank, current at the time, with a tender of the notes, was held to be bad. Mitchell V. Hewitt, 5 S. & M. 361. 17-2. A note payable to A. or bearer, is transferable by mere de- livery ; the holder claims title g.s bearer, and the indorsement of A. is not essential to enable the bearer to bring suit upon it ; if the bearer indorse and transfer it, he is liable as indorser thereon, although the payee has never indorsed it. Till- man V. Ailles, 5 S. & M. 373. 173. Where a party is sued in assumpsit as indorser of a note, and pleads the general issue, he thereby admits the character of in- dorser, in which he is sued. lb. 174. A want of funds in the hands of the drawee when a bill is drawn, dispenses with the neces- sity of notice to the drawer ; and it is not necessary for the holder, in a suit against the drawer, to prove affirmatively that he sustained no damage by failure of notice, even though it is so averred in the decla- ration ; from the fact of no assets the law draws the conclusion of no damage sustained. Cook v. Martin, 5 S. & M. 379. 175. Where a note is payable on demand, at a particular place, at a fixed time after date, it is not ne- cessary to make demand at that place before an action may be maintained against the maker ; whether the rule would be other- wise if no fixed time were named, qumre ? At all events if the maker were ready at the time and place to pay, on proof of that fact he will be exonerated from costs. Ih. 176. Where several notes, ma- turing at different periods, are se- cured by a deed of trust, and have past maturity, and a sale of the trust property takes place under the trust, the proceeds of the sale are to be applied ratably to the several notes ; where, therefore, C. was sued on an injunction bond, given to enjoin a judgment at law, and plead payment of the whole amount of the judgment enjoined before action brought, and offered to prove that the note sued on was the second of three given for equal sums each, maturing in three consecutive years, and secured by a deed of trust ; that a sale of the trust property, after all the notes- had matured, had been had, and the proceeds applied by the trustee solely to the third note, which was thereby discharged, which C. contended should have been appropriated to the second in- stead of the third note ; held, that the proof weis admissible, but that the proceeds of sale should be distri- buted equally among the three notes. Cage V. Her, 5 S. & M. 410. 177. Where a person, entrusted with a note to place in the hands of an attorney for collection, with in- structions to deposit the attorney's receipt, subject to the order of the owner of the note, did place the note in the hands of an attorney, but instead of depositing the at- torney's receipt, as instructed, as- signed it to a third person, without notice of the fact that he held it in trust only, it was AeZrf, that the owner of the note was entitled to the money collected on it, in preference to the assignee of the attorney's receipt ; and if the attorney, after notice by injunction of the claim of the holder of the note, pay the money over to the holder of his receipt, even BILLS OF EXCHANGE AND PROMISSORY NOTES. 101 though he do so under a belief that the injunctioh was dissolved, the holder of the note will be entitled to a decree against him. Roberts V. Bean, 5 S. & M. 590. 178. if a person, who is not the payee, put his name on the back of a note, at the time it was made, ac- cording to a promise to become originally and directly responsible ; or if he participated in the consid- eration for which the note was given, he must be treated as a joint ;- maker : yet, if his indorsement was subsequent to the making of the note, and he had nothing to do with the original consideration, but put his name on it to add to the securi- ty, he will be regarded as a guaran- tor ; but before he can be held lia- ble as either, there must be proof of the circumstances which would authorize his being held liable ; where, therefore, a note was sued on as the joint note of E. and O. and T. ; E. and O. having signed it on the face, and T. on the back ; and there was no other proof but the note itself, it was held, that T.'s liability as joint maker was not thereby made out. Thomas v. Jen- nings, 5 S. & M. 627. 179. It seems a joint action can- not be sustained against the makers and guarantor of a promissory note. lb. 180. The plea to an action of assumpsit on a note, that the plain- tiff was not the lawful owner or bearer of the note sued upon, at the time of the commencement of the suit is bad, as amounting to the general issue. Bingham v. Ses- sions, 6 S. & M. 13. 181. A plea to an action on a note, that the note was obtained by duress, and setting forth in a detail of circumstances the nature of the duress in the procurement of the 9* note, is not by such detail, even if unnecessary, vitiated. lb. 182. A plea to an action on a note, that the note was given to obtain the release of certain pro- perty levied on by virtue of a cer- tain execution, which was fraudu- lently issued on a judgment pre- viously satisfied, under which exe- cution the plaintiff threatened to sell the property thus levied on, is bad ; a note given to obtain the re- lease of property from an illegal levy is not void ; the mak,er has his redress by action against the judg- ment crfeditor, or the option to give the note ; if he elect the latter, he is bound by it. lb. 183. A plea to an action on a note, that the note was obtained by duress, through the fraudulent levy of an execution by the plaintiff therein, though bad as a plea of duress, should be so amended by the permission of the court, as to allow the defence arising out of the fraud of the plaintiff, to be made. lb. 184. Whether an action can be maintained in the courts of Missis- sippi by the bearer of a note, pay- able to bearer, which note was made in the state of Alabama, where a statute provides, that no one can maintain an action aa the bearer of a promissory note ? Qticere ? Hemphill v. The Bank of Alabama, 6 S. & M. 44. 185. The insolvency of the maker of a promissory note is no excuse for not making demand of payment, and not giving notice of protest. Reaves v. I)ennis, 6 S. & M. 89. 186. See Executor and Admin- istrator, 82, 100. A note given by an administrator for the debt of his intestate is not binding, unless there are assets, 187. See Pleading, 173 ; not ne- cessary, in declaring on a note, to 102 BILLS OF EXCHANGE AND PROMISSORY NOTES. state for whose use the note on its face purports to have been made. 188i If the holder of a promis- sory note be ignorant of the place where the indorser resides at the time of protest, and cannot as- certain it after diligent inquiry, no- tice of protest sent to the place where the note bears date wilf be sufficient. Godley v. Goodloe, 6 S. ds M 255. 189. The question of due dili- gence, in serving notice of protest, when it depends on the testimony of witnesses before a jury, must be submitted to the jury for their de- cision, under appropriate charges as to the law, from the court, if thie evidence be agreed on by the' par- ties, the question of due diligence is then one purely of law for the decision of the court. lb. 190. If a third party take up a bill for the honor of the drawer, and at his request, at its maturity, he thereby releases the accommo- dation acceptor of such bill, whether he intended it or not, even though he looked to the acceptors when he took up the bill. McDowell v. Cook, 6 S. & M..420. 191. In an action of trover for a note payable to bearer, the posses- sion by the defendant of the note will be prima facie evidence of his ownership, which will not be re- butted by proof that the note for- merly belonged to the plaintiff; it would be otherwise if the note were payable to order and not indorsed. Smith V. Prestige, 6 S. & M. 478. 192. Where a holder sues on a note, and his title is properly ques- tioned, he must make out his title ; but when the holder is sued for a note payable to bearer, his posses- sion will be a sufficient protection until a better title is shown. lb. 193. Where a separate suit was instituted against an indorser of a bill of exchange, and also a joint suit on the same bill against him and the other parties thereto, and on the same day judgments were rendered in both cases, in the sepa- rate suit against him, and in the joint suit for him where he had plead tio the action ; held, that he could have no relief in equity,' though the proceedings at law were irregular, as the plaintiff Had no right to sue the indorser separately,, yet the defendant should have ap^j pealed. Benton v. Crowder, 7 S. & M. 185. 194. Where the maker and in- dorser are sued separately since the act of 1837, and the maker gives a forthcoming bond, it will not be a satisfaction of the judgment against the indorser ; nothing but an actual payment of the one would be a satisfaction of the other. lb. 195. A court of equity has juris- diction of a bill to recover of the maker the amount of a lost note ; but it seems ' the court will require a bond of indemnity from the com- plainant, not only against the note it- self, but also against the damages and accumulated expenses of another suit. Truly v. Lane, 7 S. & M. 325. ■ 196. A note payable " in the notes of the chartered banks of Mississippi at par," is free from ambiguity, and means that the notes of chartered banks were to be taken as at par, that is without discount or premium, in payment of the note ; parol evidence is therefore inadmissible to show in what kind of funds the note was payable ; and a plea of tender " in the notes of chartered banks of Mississippi," without averring that they were " at par," is good in an action on such note. Smith v. Elder, 7 S. & M. 507. BILLS OF EXCHANGE AND PROMISSORY NOTES. 103 197. Where A. draws a bill on B. in favor of C. and B. accepts the bill in writing, and is sued upon it, he cannot show by parol evidence that the acceptance of the bill was given to C. to be obligatory upon condition that A. finished a job of work that he had undertaken for B. Heaverin v. Donnell, 7 S. & M. 244. 198. W. gave his note to E. in satisfaction of a judgment that R. hadxjbtained against W., of which E. alleged himself to be the owner ; the note was not to be obligatory, in case it turned out that E. was not the owner ; E. proving not to be, the owner, AeZ(Z,''that W. was not liable on the note. Brooks v. Whitson,! S. & M. 513. 199. An assignee of a note who receives as an indemnity for a prior liability of the assignor to him, is not a iona fide assignee for valuable consideration, and -without notice, but takes the note, subject to the equities between the maker and assignor. lb. 200. A court of equity has juris- diction of a bill filed to recover from the indorsers of a lost note, the amount of it ; the basis of equity jurisdiction, in such cases, being the power of the court to compel indemnity ; it is not neces- sary, however, that the indemnity should, be tendered before the bill is filed, or the parties themselves ; it must, however, be offered on the face of the bill, to give the court jurisdiction ; the bill must also be accompanied with an affidavit of the loss of the note. Smith v. Walker, 1 S. & M. Ch. 432. 201. Where a note made for dis- count at a bank is made payable to the banking company, and is signed by, G. as principal, and H. and others as sureties, and the bank re- fuses, to discount it, and the note is afterwards passed to W. in pay- ment of the debt of some third per- son, neither principal nor surety to the note, and without their assent, W. having full knowledge of the object of the creation of the note : Held, that the note in the hands of W. was not obligatory upon the surety. Herring v. Winans, 1 S. & M. Ch. 466. 202. Where a note is payable to a banking company, and is taken by W. without indorsement from the payees, W. is affected with all the equities of the makers of the note. lb. 203. See Chancery, tit. New Trial ; indorser of a note, given for an illegal consideration, who has suflTered a judgment by default, should be relieved from the judg- ment, where the makers have been discharged oij account of the illegal consideration. 204. After the holder of a note has fixed the liability of an accommoda- tion indorser by judgment, the lat- ter becomes a principal and is not entitled to the aid of a court of equity as a surety. McNutt v. Wilcox, Freem. Ch. 116. 205. See Surety, 30 ; an ac- commodation indorser where the principal h^^s secured the debt by mortgage, may execute his individu- al note in payment of the debt, and take a transfer of it and the mort- gage, and foreclose it. 206. See Agent, 16 ; when the assignee of agent of notes belong- ing to principal, will be decreed to hold the notes for the benefit of the principal. 207. Where the makers of a note induced the indorser to indorse it for their axscommodation, by rep- resenting thskt it was to be used in renewal of a^hote on which the in- dorser was liable, and it appeared that the indorser was not so liable. 104 BILL OF PARTICULARS. — BOARD OF POLICE, and that the maker used the note for a different purpose ; held, that the indorser was not liable thereon unless the holder had obtained it without knowledge of the fraud on the indorser, in the usual course of, trade, for value ; and the holder of the note must show these facts. Nevitt v.- Bfink of Port Gibson, Freem. Ch. 438. BILL OF PARTICULARS. 1. Where the declaration de- scribes the cause of action with suffi- cient particularity to give the de- fendant notice of it, no bill of par- ticulars is necessary ; as where in assumpsit to recover the price of horses sold, the declaration de- scribed the horses particularly by color, it was held, no bill of partic- ulars was necessary ; but where the declaration is not thus specifid, no evidence can be given of other items. Nevitt v. Rabe, 5 How. 653. 2. It seems if no objection be made to the evidence in the court below for want of a bill of partic- ulars, it cannot be jnade in the high court. lb. ; Bank of Louisiana V. Ballard, 7 How. 371. 3. In an action of assumpsit against a bank founded on its notes, the notes offered in evidence did not correspond with the bill of items filed with the declaration, but were correctly described in the process forming the foundation of the suit, and had been on file in the papers of the case since the insti- tution of the suit ; held, that they were admissible in evidence not- withstanding they differed from those described in the bill of par- ticulars. Hughes V. Grand Gulf Bank, 2 S. & M. 115. BOARD OF POLICE. 1. Where a supposed creditor of a county presents his claim for allowance before the board of po- lice, and it refuses his application, such refusal is a judgment of the board from which an appeal, under the statute, by bill of exceptions or certiorari, will lie to the circuit court ; such appeal not being un- constitutional, there being an ul- timate appeal to the high court. County of Yalabusha v. Carbry, 3 S. & M. 529. 2. An agreement made , of re- cord, before the board of police, that an appeal from their decision may be tried de novo upon such evi- dence as might be produced, is equivalent to an agreement for a trial by jury in the circuit court, and waives any objection that might otherwise lie to such mode of trial there ; whether the appellant would, at all events, be entitled to a jury trial there. QucereJ But where the county consents to it of record, he would be. lb. 3. The judgment of the board of police, like that of any other competent tribunal, is final until re- versed, lb. So also Ross v. Lane, 8 S. & M. 695. 4. Where the statute allowed an appeal from the decisions of the board of police by bill of excep- tions, and the board consented of record to an appeal without the bill ; held, that • the consent cured the error. lb. 5. The board of police of each county has power under the statute to contract for the building of the court house ; the commifesioners empowered by law to contract for the work, being the mere agents of the board. lb. 6. The right to a change of ve- BOND OF INDEMNITY. — BONDS. 105 nue in civil cases, applies only to caises instituted in the circuit court, and not appeals from the board of pplice ; and if, on such an ap- peal, the venue be changed, and. a trial and verdict had in the new county, they will be void for vifant of jurisdiction, lb. 7. Whether a suit can be brought directly. against a cojinty as a qiiasi corporation without express statu- tory provision seems doubtful. lb. BOND OF INDEMNITY. A bond of indemnity given by one . partner to another, con- ditioned to save him harmless from any loss or damage, growing out of the partnership debts, is not a bond to pay the debts, and a court of equity cannot entertain a bill by the obligee therein, to compel the obli- gor to pay them, where no damage has been suffered by the obligee ; and it seems that, as a general rule, a court of equity will never decree the specific performance of a bond of indemnity sounding in damages, unless it covenant to do a particu- lar thing by way of indemnity and a breach of the bond would be productive of injury irreparable at law. Hoy V. Hansborough, Freem. Ch. 533 ; idem Fooie v. Garland, 1 S. & M. Ch. 95. BONDS. 1 . See Pleading, 9 ; as to declar- ation on bonds with conditions. Mullen v. Jelks, Walk. 205. 2. In an action founded on a bond with conditions, and no assign- ment of breaches, it is error to as- sess damages. Riley v. Rufin, Walk. 425. 3. A plea of payment admits the execution of the bond sued on. Hines v. Rogers, Walk. 486. 4. An erasure of the names of two out of three of the obligors to a bond for building a public bridge, vitiates the bond as to all those par- ties to it not assenting to the eras- ure. Love V. Shoape, Walk. 508. 5. An omissioa in an action on a bond to set out the consideration or the use for which the bond was in- tended, or the liability of others, will not be ground of variance if the obligation is declared on ac- cording to its effect. Berthe v. Biggs, 1 How. 195. 6. An obligation signed by B. for the payment by him of money ex- pressed to be loaned to the estate of E., is binding on B. as his per- sonal obligation, and in the declar- ation on the bond, the estate of E. need not be mentioned, i ^■f" . 7. See Evidence, ^r, asHohow far injunction bond void for ambi- guity and uncertainty. 8. See Pleading, 34 ; as to ac- tion on bond with conditions. 9. See Executors and Adminis- trators, 43 ; as to how far a suit may be brought on executor's bond for use of one who is at the same time administrator of one of the obligors in the bond. 10. See Pleading, 45 ; for plea of non damnijicaius to action on bond of indemnity. 11. Giving a bond for a simple contract debt is a discharge of the latter prima facie, though it may be shown that it was only taken as colla- teral. Myers\. Oglesby, 6 How, 46. 12. If to an action on a penal bond with a condition, to recover damages for a breach of the condi- tion, the defendant plead general performance, and the plea be repli- ed to, and issue joined, the burden of proof is on the plaintiff, and he must establish his breach as aver- 106 BONDS. — CERTIORARI. red ; but the rule is otherwise if the defendant plead special perform- ance. Holiday v. Cooper, 1 S. & M. 633 ; and a plea of general performance is bad. Emanuel v. Laughlin, 3 S. & M. 342. 13. The taking a bond fpr title implies either that the title is im- perfect, and time is required to per- fect it, or else that the vendor re- tains the title for his own security ; and where such a bond is given and it is clear the vendor never can mak.e title, a court of chancery will re- lieve the vendee from the payment of the purchase-money. Hall v. Thompson, 1 S. & M. 443. 14. Under the statute of this state making bonds, &c. assignable, the indorsement of the obligee to pass the right to the assignee need not be under seal ; a mere parol in- dorsement will pass the right to sue. Montgomery v. Dillingliam, 3S. &M. 647. 15. Payment of a bond may be shown by parol. Tinnin v. Gar- rett, 4 S. & M. 207. 16. See Bail, 3. A bail bond is no lohger obligatory when the stat- ute has taken from the bail the pow- er to deliver up his principal ; a bond not being obligatory after the condition has become impossible or illegal. 17. See Executor and "Adminis- trator, 112. Joint suits may be prosecuted against surviving obligor and representative of deceased obligor. BOND FOR TITLE. See infra, Real Estate and Ven- dor and Vendee. c. CERTIORARI. 1. The want of original process, aftej" appearance and plea, can only be taken advar^tage of, if at all, by writ of certiorari. jDelahuff v. Reed, Walk. 74. 2. A certiorari is not a writ of right, to . be > granted as a matter of course, without any showing that the law has been violated or injus- tice done ; and though in England, in prosecutions at the instance of the king, it is the custom to issue writs of certiorari as a matter of course on behalf of the crown, yet in bivil oases it should not be grant- ed where an appeal is given, if the objection be not to the want of jii- risdiction ; nor should it be granted pending an appeal ; but whenever the rights, of individuals are infring- ed by those in a;uthority, who act illegally, they may have redress by certiorari, unless they can resort to^a writ of error. Duggen v. Jfc- Gruder, Walk. 112. 3. Even after the expiration of right of appeal, a certiorari may sometimes be granted where the rights of individuals are affected by the illegal acts of those in authori- ty, lb. 4. Probate judge has no right to issue writ of certiorari. Barlow v. Esterling, Walk. 302. 5. Where A. alleged, in a peti- tion for a certiorari, that he had a judgment in the circuit court against B. for a certain sum, and that B. CERTIORARI. — CHANCERY. 107 had a judgment in the magistrates' court against A. for a smaller, which B. was seeking to enforce without , paying .A.'s judgment ; held, that A. was not entitled to a certiorari against the judgment of B., and one improperly awarded should be dismissed. Leech v. Ir- wing, 2 HoW; 887.. 6. The petition for a certiorari is addressed to the discretion of the circuit judge ; if he grants it the high court cannot review it ; it is the same also with the bond given on the petition. Neither the peti- tion nor bond are parts of the re- cord unless made so by bill of ex- ceptions. Loornis v. Bank of Cq- lumbus, 4 How. 660. 7. It is too late, after the defend- ant in errpr has joined in the error assigned, to move for a certiorari ; joinder in error is like a demurrer, it admits that the causes of error assigned exist in the record, but de- nies their sufficiency. Patrick v. McKernon, 5 How. 578. 8. On motion for a certiorari for a better record, satisfactory proof must be made that the defect alleged exists in ^he record, and that it can be amended. lb. 9. A certiorari to take' g, case from a justice's court to the circuit court lies only where it is alleged the judgment in the justice's court is unjust, and not for any irregulari- ties since judgment ; it can only issue within a year from the date of the judgment under the statute. Ewing V. Burton, 5 How. 660. 10. The court can award a cer- tiorari to bring up. a better record, in criminal as well as civil cases. Leper v. State, 3 How. 429. 11. On the removal of a cause by certiorari from the justices' court, the defendant in the certio- rari must have notice. Copeland V. Pate, 6 How. 275. 12. See Circuit Court, 10 ; for jurisdiction of cases brought up by certiorari ; and power to dismiss the certiorari after appearance. 13. A certiorari will be allowed as well when an excess of matter in the record is suggested, as when a diminution ; where, therefore, an imperfection in the record is alleg- ed, in its containing matter not in the record below, a certiorari for a new record will be awarded. Harris v. The Planters Bank, 4 S. & M. 701. CHAMPERTY. 1 . Whether sale of the inter- st of one tenant in common after ouster by his co-tenant is void for cham- perty, Quaere ? Harmon v. James, 7S. &M. 111. 2. There are no statutes on the subject of champerty in this state ; the English statute of 32 Henry VIII. c. 9, on that subject, is not in force here ; in order, therefore, to • avoid a contract on the ground of champerty, the common law offence must be complete ; to constitute which, it must not only be proved that there was adverse possession at the time of sale, but that the pur- chaser had knowledge of such ad- verse possession ; this is especially the case where the land granted was in forest and wild at the time of the grant. Sessions v. Reynolds, 7 S. & M. 130. CHANCERY. a. Account. b. Amendment. c. Answer and Pro Confesso. d. Allaclanent in Chancery. .e. Bill of Discovery, y f. Bill of Interpleader^: g. Bills quia timet. 108 CHANCERY. h. i. J- k. 1. m. 11. o. P- T. S. t. u. V. w X. y- z. aa. bb. cc. dd. ee. ff. eg- hh. Bills of Review. Decree. ^ Demurrer. Depositions. Dismissal, Effect of. ' Fraud. Infants. Injunction. Issue out of Chancery. Jurisdiction ; and herein of Fraud, Accident, Mistake, Rescission of Contracts, Cancelment of Deeds, and the general Principles of Ju- risdiction . Marshalling Assets. Mortgage. New Trial; and herein of reasons for not making defence at law. Parties. Pleading. Practice in Chancery. Publication. Purchaser without Notice. Real Estate. Receiver. Rehearing. Relief. Revivor. Rules of Court. Sale by Commissioner of Chance- ry Court. Specific Performance of Contracts. Time, effect of, in Equity. a. Account. ' 1. Upon an interlocutory decree of a court of chancery, referring an account to three persons by name, as auditors, or a majority of them, it is*ino valid objection to* the pro- ceedings and report of the auditors, that one of the three was never no- tified to attend. Had the exception to the absence of one of the audi- tors been valid, it should have been taken before the auditors. Davis V. Foley, Walk. 43. 2. Exceptions to the auditors' re- port cannot be sustained unless they were made and overruled before the auditors and certified by them ■ to the court ; a party cannot, by ex- ception to the auditor's report, im- pugn the decree directing the report to be taken, nor rely upon new grounds of defence not set forth in the pleadings ; in the absence of statute direction, the practice before auditors must conform strictly to the practice of the master in England. lb. 3. G. obtained a judgment against H. & D., which was paid by M. at the instance of H. & D. ; M. took an assignment of the judgment from the attorney at law of G. and at- tempted to enforce it by execution ; H; & D. enjoined the execijtion on the ground of its payment by M., and in their bill prayed that a gene- ral account might be taken, which the chancellor ordered, and upon which it appeared that H. & D. and G. were each indebted to M., and the chancellor decreed payment ; held, that as H. & D. had prayed the account in their bill for the in- junction, although they need not have done so, yet they could not be allowed to object to it, nor the de- cree under it. Head v. Gervais, Walk. 431. 4. If in answer to a bill calling a trustee to account,he respond that the trust property has been exhaust- ed in the purposes of the trust, ho decree to account should be'order- ed against him. Stamps v. Bracy, 1 How. 312, 5. An account may be ordered even if it is not prayed for. Gil- dart V. Starke, 1- How. 450. 6. In exceptions to a report, the parties excepting are confined to the objections to the report which / were taken before the commissioner, and by him disallowed, lb. 7. The notice required of settling an account for report from the com- missioner is reasonable only ; nine days notice held to be reasonable. lb. 8. An interlocutory decree to account need not be ordered where the parties have made and agreed CHANCERY. 109 to a final settlement between them- selves ; unless there is ground laid to surcharge and falsify the account. Calvit V. Markham, 3 How. 343. 9. In order to surcharge an ac- count, the specific errors must be pointed out; a general charge of error will not do. lb. 10. If the record show that the counsel of both parties consented thg,t a commissioner, appointed by the chancellor to take and state an account between the parties, should proceed to take the account, and there is no evidence that such con- sent was intended to give the com- missioner authority also to proceed to settle his report without further notice to the parties, and he does proceed to settle his report without notice, and exceptions are filed to his report for the want of notice, the exceptions should be sustained and the cause recommitted to the commissioner. Poindexter v. La^ Roche, 7 S. & M. 699. 11. Where a cause was referred to S. &F., or either of them, to state an account between the parties, and S. alone stated the account, and his report was excepted to, and the exceptions sustained and the cause recommitted to the commissioner, held, that S. was the commissioner to whom the recommitment was made, and report therefore made by F. upon the recommitment was subject to exception therefor, lb. 12. In order to lay the founda- tion for an interlocutory decree to account, the facts in relation to the account must not only be put in issue, but there must be some evi- dence to show that the facts are probable and the equity proper ; the court will not make a reference unless the testimony in chief is first taken. Planters Bank v. Stockman, Freem. Ch. 502. 10 13. An interlocutory decree for an account is always under the con- trol of the court, and may, under peculiar^views, even after confirm- ationor the report by a commis- sioner taxing an account under the decree, be reviewed and set aside. ** Davis V. Roberts, 1 S. &M. Ch. 543. 14. D. filed her bill, claiming a large sum to be due from R.'s in- testate, V. (for whom D. had once been guardian,) for sums expended for V. while she was her ward ; an interlocutory decree for an account, though the bill did not pray for an account, was rendered, and the commissioner reported a large bal- ance to be due D. for the care of v., not only while the relation of guardian and ward existed, .but for a period long anterior to that time ; which report, although excepted to by both parties, was confirmed with- out disposing of the exceptions ; held, upon final hearing of the cause that the report of the commissioner was not res adjudicata by the order of confirmation, but was under the control of the court, and should be set aside and annulled for irregu- larity. Davis V. Roberts, 1 S. &-t M. Ch. 543. 15. Where exceptions are allow- ed to a report reducing the amount of the account reported, the court can, without referring the accounts back for a restatement, modify the report and settle the true amount upon the evidence reported. lb. 16. Where a case is referred to a commissioner to state an account between the parties, and one of the parties files exceptions to the re- port of the commissioner, and the chancellor refers the exceptions to a master commissioner, who over- rules all the exceptions, and the re- port of the master commissioner is confirmed by the ch^cellor with- 110 CHANCERY. out any exceptions taken thereto ; the party who filedi the exceptions to the report of the first commis- sioner is not thereby concluded ; but he may avail himself of the be- nefit of those exceptions in the high' court of errors and appeals. Poin- dexter v. LaRoche, 7 S. & M. 699. b. Amendment. 17. Where the court is about to sign a final decree in chancery, it is too late to move to amend the .-i-, answer. Burnham v. Huffman, Walk. 381. 18. It is too late, two years after aiiswer filed and the cause set for hearing, to move to amend the bill to surcharge and falsify a settle- ment with the probate court, by in- serting a charge of fraud in passing the account. Vertner v. Griffith, Walk. 414. 19. After the court has decided a demurrer to a bill, for want of equity on its face, it is too late to move to amend. McCofnas v. Minor, Walk. 513. 20. The court of chancery has power to allow amendments of the pleadings at any stage in the pro- gress of the cause ; such amend- ments are in his discretion, and when made will not be inquired in- to by the high court. Truly v. Lane, 7 S. & M. 325. 21. A complainant making ap- plication to aine;id a sworn bill after the answe/ of the defendant is fijed, must show that the pro- posed amendment contains matter important to his rights, and which was unknown to him at the time of filing his original bill, or else he must show a special reason which will excuse him from negligence in the matter. Everett v. Winn, 1 S. & M. CM 67. c. . Ansioer and Pro Confesso. 22. Where the facts stated in complainant's bill are. denied in re- spondent's answer, they must be proved by two credible witnesses, or one witness and strong corrobo- rating circumstances. Lee v. Montgomery, Walk. 109. 23. An answer responsive to the bill can only be rebutted by the testimony of two witnesses, or of one witness and strong corrobora- ting circumstances ; but the rule is otherwise, as to matter in avoid- ance stated in an answer ; where, therefore, the defendant admitted the execution of the bond charged in the bill, but averred payment, that averment was no evidence of payment. Nichols y. Daniels, Walk. 224. 24. See Evidence, 46 : Answer in, chancery when not evidence for the defendant in a suit at law. 25. Where a defendant admits tHe charges in the bill, but sets up matter in avoidance, if the bill be set down for hearing generally, without replication, the answer will not be taken as true to its fullest extent ; if it appear, however, that the plaintiff set the bill down for hearing, the answer will be re- ceived as true in all points. Car- man V. Watson, 1 How. 333. 26. An evasive answer, neither admitting nor denying the allega- tions of the bill, is properly rejected ; and where leave is given to answer over, and it is declined, and an ap- plication to,. '^lead refused ; held, that the re&sal to allow the de- fendant to plead was not erroneous, as . it was in the discretion of the chancellor, and if did not appear what the defendant intended to plead. Carmichael v. Hunter, 4 How. 308. 27. If a cause be set for hearing CHANCERY. Ill by the complainant on bill and an- swer, at the return term, as it may be under the statute of this state, the entire answer is to be taken as true ; but if there he a continuance and depositions opened, as the rule of court dispenses with a replica- tion to the • answer, the cause will stand as on replication ' filed, and all matter in avoidance set. up by the answer, which is not responsive to the bill, must be proved. Rus- sel V. Moffitt, 6 How. 303. See- also infra. Chancery, Specific Perr formance. 28. Although', as a general rule, the answer of one defendant is not evidence against his co-defendant, yet if the defendants are privies, (and they are so, where one claims as the assignee of the other,) the answer of the assignor will be evi- dence against the assignee. Fitch v. Stamps, 6 How. 487. 29. Where an answer and a de- murrer are both filed to a bill of discovery, the former overrules the latter. Robinson v. Francis, 7- How. 458. The rule is general. Baines v. McGee, 1 S. & M. 208. 30. It is too late on appeal from the decision of the chancery court, dissolving an injunction, to object that the answer was not filed within the time prescribed, after over- ruling the demurrer ; the objection should be made in the court below, before the answer was filed ; it is also too late on appeal to object to the jurat to an answer ; if the ob- jectioa is not made in the court be- low^it will be considered as being waived. Yeizer v. Burke, 3 S. & M. 439. 31. As a general rule, the an- swer of one defendant is not evi- dence against his co-defendant ; nor does the failure of one to an- swer and pro confesso against him, entitle the complainant to take the allegations of the bill against him as true, so as to defeat the rights of one who does answer ; where, therefore, the bill charged fraud in the vendor, of land, and sought a rescission of the contract and an in- junction against the collection of the purchase-money, by the as- signee of the vendor, and the bill was taken for confessed against the vendor, but the assignee an- swered, denying all knowledge of the fraud, and claiming to be a lona fide assignee for value with- out notice ; it was held, that the pro confesso, as to the vendor, did not make the allegations of the bill true as to the assignee, and in de- fault of their proof aliunde, the bill must be dismissed. Holloway y. Moore, 4 S. & M. 594. 32. Taking a case for confessed > in equity, entitles the complainant to a decree only against the party as to whom the bill lias been taken for confessed ; not against the others ; and if the defendant against whom no pro confesso has been taken, disprove the bill, the whole will be dismissed. Hargrove v. Martin, Q^. &M.-61. 33. Where a decree has been rendered in a suit against adults and infants, on pro confesso against the former, without proof, and the " high court oh that account reverse the decree, the pro confesso as to the adults will not thereby be set aside ;'^the cause will proceed as if no decree had been pronounced. lb. 34. Where an answer sets up matter in avoidance of the equitable allegations in the bill which it ad- mits, such matter is not evidence to the court on a motion to dissolve the injunction on bill and answer. 112 CHANCERY. Ferriday v. Selcer, Freem. Ch. E. 258. 35. The answers to a bill to in- terrogatories propounded in it are evidence for as well as against the defendant ; but if the answer do not respond to all the allegations of the bill, and is not excepted to, the burden of proving the allegations of the bill will still rest on the com- plainant! Oakey v. Rabb, Freem. Ch. R. 546. 36. Where the original notes, given by the mortgagor of a tract of land, for the purchase-money, are taken up and new ones substituted instead by the vendee, and the vendor files his bill to enforce his equitable lien, the answer of the vendee that the new notes were received in satisfaction and dis- charge of that lien, is not evidence. Planters Bank v. Courtney, 1 S. & M. Ch. 40. 37. A mere motion in court to dissolve an injunction granted in a case is not that formal entry of ap- . pearance which will authorize the complainant to take a pro confesso against the party making the mo- tion ; to justify the complainant's, taking his bill (or confessed, prg- cess must either have been served upon the other party, or his ap- pearance as a defendant to the cause formally entered of record ; and there being no regular ap- pearance days fixed by the rules of the court, a party desirous to enter his appearance can do so at any time while the court is in session, by making his application, and having it entered of record. Chew- ning v. Nichols, 1 S. & M. Ch. 122. •38. A bill may be taken for con- fessed, even though the exhibits to the bill are not filed. Gwin v. Stone, 1 S. & M. Ch. 124. 39. Applications to set aside pro confesses are addressed to the dis- cretion of the court upon the cir- cumstances of each particular case ; and will, as a general rule, be granted , if not productive of inju- rious delay, and the applicant has not been culpably negligent ; where, therefore, G. filed his bill against H. a tion-resident, and upon proof of publication of notice, took this bill for confessed ; H. applied for leave to answer, stating that he knew of the pendency of the bill, but his counsel informed him no answer would be needed ; as soon as he learned a pro confesso had been entered against him he came to the state to have it set aside ; the cause was not in a condition for final hearing, for want of further evi- dence on the part of the complain- ant ; held, that the pro confesso should be set aside, and the answer filed, on the payment of all costs by the defendant. Gwin v. Harris, 1 S. & M. Ch. 528. d. Attachment ih Chancery. 40. See Attachments in Chancery, 1 and 2. The court of chancery has jurisdiction of a bill filed by a non-resident complainant against a non-resident debtor, if there be also a resident defendant ; whether there be a judgment at law or not. Comr stock V. Rayford, 1 S. & M. 423 ; so, also, whether there be a home\ defendant or not, even though all the parties are non-residents, if the defendant hath lands, ifec. within the state, which the bill seeks, to. _at-_ tach. Zecharie v. Bowers, 3 S. & / M. 641. 41. W. B. dies intestate, S. B. administers upon his estate, and leaves the country with the prop- erty of W. B. in possession ; held, that the court of chancery had ju- CHANCEEY. 113 risdiction of a suit, by the distribu- tees ofW. B., to attach the property of S.. B. left in this state, and sub- ject it to the payment of his liability to the estate of W. B., that being clearly ascertained by the pleadings and proof, and it appearing that the ancestor's debts were all paid, and no administration then pending up- on the estate. If the debts were unpaid, or administration de bonis non existing in either case, the bill would have to be filed by the ad- ministrator de bonis non, to subject the property for the benefit of the creditors; or ascertain the amount of the indebtedness of the first ad- ministrator. Barrow v. Barrow, 1 S. & M. Ch. 101. 42. The lien of an attachment in chancery, commences and takes effect from the time of the levy, and not from the time of issuing the attachment. Mears v. Winslow, 1 S. & M. Ch. 449. e. Bill of Discovery. 43. A bill for mere discovery cannot be set down for final hear- ing. Townsend v. Odam, Walk. 356. 44. Where matters in avoidance are stated in an answer to a bill of discovery they are subject to be supported or disproved by evidence aliunde, on both sides: Greenleaf V. Highland, Walk. 375. 45. A bill of discovery cannot be used by the party answering, unless the answer be first intro- duced by the other party. 3. 46. The defendant to a bill of discovery is hound to answer a bill charging that the defendant was seeking to enforce an usurious con- tract ; even though his answer may cause him to forfeit the legal in- terest. Taylor V. Matchell, 1 How. 596. 10* 47. The material charges in a bill of discovery, which are neither admitted nor denied, are to be taken as true. lb. 48. It is not a valid objection to an answer to a bill of discovery' to be read in a trial at law, that it con- tains a mere statement of the Sub- stance of a correspondence called for, if the correspondence itself be made a part of the answer. Fox V. Fisk, 6 How. 328. 49. The filing a bill of discovery is an admission that the complain- ant therein cannot prove the facts, except by the answer of his adver- sary ; and that answer is conclu- sive, it cannot be contradicted. Robinson v. Francis, 7 How. 458. 50. Where an answer and de- murrer are both filed to a bill of discovery, the former overrules the latter. lb. 51. The allowance of a bill of discovery, in a trial at law, is, under the statute of 1828, a matter in the sound discretion of the court, and ought not to be granted where it is not applied for until the cause is called for trial. Dillahuhty v. Smith, 7 How. 673. 52. A bill of discovery, under the statutes, in a suit at law, when applied for on proper grounds, must be granted, it is not a matter in the discretion of the court below which cannot be reviewed by the high court ; where, therefore, before a case was called for trial, the de- fendant offered a bill, of discovery on p^roper grounds, it was held, by the' high court to be error in the court below, not to compel an an- swer' to it. Scott v. Hamblin, 3 S. & M. 285. 53. The allowance of a bill of discovery, under the statute, in «a trial at law, being in the discretion of the court, is properly refused 114 CHANCERY. where it is np{ offered, and a con- tinuance prayed to procure an an- swer, until the case is called for trial. Rule V. Taylor, 4 S. & M. 577. See supra, Bill of Discovery, passim. f. Bill of Interpleader. 54. A bill of interpleader is a proper remedy where suits are either threatened or actually pend- ing by two different claimants against a party, claiming the same debt or duty by different or separate inter- ests ; but after the right is deter- mined by a judgment at law against the interpleader he cannot inter- plead ; as where two judgments were rendered against a garnishee, one in favor of the attaching cred- itor and the other in favor of the assignee of the note, the note being in fact the foundation of both judg- ments, and the garnishee having defended both cases, he cannot, in a court of equity by a bill of inter- pleader, obtain a perpetual injunc- tion against either. Yarhorough v. Thompson, 3 S. di-M. 291. 55. A bill of interpleader admits the indebtedness of the complain- ant therein, and when one of the two parties defendant withdraws all claim to the fund, a decree in favor of the other is a matter of course Knight V. Yarhorough, 7 S. & M. 179. 56. C. being the administrator of a deceased mortgagor, was gar- nisheed by B., a creditor of the mortgagee, and answered admitting the debt, and judgment was ren- dered against him ; C. afterwards found that the mortgagee had pre- viously transferred the mortgage notes to G., who insisted on their payment to him ; C. filed his bill, making them all parties, and re- quiring them to interplead and set- tle their conflictijig rights to the mortgage debt, and praying an in- junction against the judgment of B. ; held, that the case presented by the bill was a proper one of interpleader, and that the judgment of B. should be enjoined until it was ascertained whether the trans- fer of the notes was before or after the judgment ; and if before, that the judgment of B. should be per- petually enjoined. Cannon v. Kin- ney, 1 S. & M. Ch. 555. See infra, tit. Garnishment ; for interpleader in case of. Cocke v. Ledbetter, 1 How. 43. g. Bills quia timet. 57. In. a bill quia timet it is ne- cessary to allege and prove that the complainant will be damnified by the act, to prevent 'which the injunction is prayed. Green v. Hankinson, Walk. 487. h. Bills of Review. 58. A bill of review will not be granted merely to accumulate tes- timony on a point' already in is- sue in the former case and de- cided ; therefore, where the ques- tion at issue was one of heirship, and it was decided against the claimant, he cannot have a bill of review because he has discovered new witnesses to establish his heir- ship ; if, however, such a bill of review be permitted to be filed without objection, and be answered and proof taken, the objection can- not prevail in the appellate court. Her V. Routh, 3 How. 276. 59. A bill of review can only be entertained for errors of law appearing in the body of the de- cree, or for new and material mat- ter discovered after enrolment of the decree ; where, therefore, on a bill in equity to foreclose a mort- CHANCERY. 115 a decree was ordered di- recting an execution of _/?. fa. to issue for any balance unsatisfied by the sale, a bill to review the de- cree will lie. Stark v. Mercer, 3 How. 377. 60. A bill of review will not lie because the complainant has not procured the record of a suit, the existence of which, he knew of, at the time of the pendency of the original bill ; he should have ap- plied for a continuance, or rehear- ing if he could not procure it then. Speight V. Adams, Free. Ch. 318. 61. A court of mere errors and appeals cannot take, original cogni- zance of a bill of review ; it can only be filed in the court in which the original decree sought to be reviewed was made. Mercer v. Starke, 1 S. & M. Ch. 479. 62. If a bill of review is Sustain- ed in a case which, when decided, was ready for final hearing, but in which the court erred in rendering the decree merely, the whole case is not thereby reopened, but the court will only correct the error in the decree so as to make it conform to the law, but if the bill of review is sustained because the case, when submitted, was not in a proper at- titude for final hearing, then the whole case is open for re-examina- tion, lb. i. Decree. 63. An action cannot be main- tained on a final decree in chan- cery, rendered after the death of the defendant, though founded upon an interlocutory order made during his life. Gerault v. Anderson, Walk. 30 ; Neilson v. Holmes, lb. 261. 64. See JMd^meni,123; a decree in chancery inadmissible as evi- dence, without the previous pro- ceedings. 65. A final decree in chancery, made after defendant's death, though based on interlocutory or- der in his life-time, is void. Gerault V. Anderson, Walk. 30 ; and may be reversed on a bill of review, or by writ of error coram nobis. Neilson v. Holmes, lb. 261. 66. See Jurisdiction, 8 ; as to appeal from interlocutory decree. 67. A decree without^ro confesso against a material party who has not answered, is irregular. Carman v. Watson, 1 How. 333. 68. Where a bill is taken for confessed against one defendant and it appears from the bill and answers of other defendants that the complainant had no right to a decree against the defendant who did not answer, the court will not make one. Minor v. Stewart, 2 How. 912; Russell v. Moffit, 6 How. 303. Decrees in chancery may be revived by scire facias. McCoy V. Nichols; 4 How. 31. 69. A final decree in chancery is one which makes an end of the case, and decides the whole matter in controversy, costs and all, leav- ing nothing further for the court to do ; interlocutory decrees are de- crees made in the progress of the cause and are open to reexami- nation on a petition for that purpose ; therefore in a suit against an administrator by the heirs and distributees of the intestate, to set aside sales made by the adminis- trator, at which he became the purchaser and for an account, a decree setting the sales aside, ap- pointing a receiver, ordering an account and directing an issue to the country, and reserving the question of costs and all other questions, until the coming in of the report and the return of the verdict, is an interlocutory decree, 116 CHANCERY. may be opened on /petition, the issue to the country withdrawn, and the chancellor may decide the questions involved, and give a fin^l decree, without reference to the previous interlocutory decree. Cook V. Bay, 4 How. 485. 70. A decree in equity subject- ing certain property to the satis- faction of a judgment at law, and ordering a sale of it for that pur- pose, must state the precise amount for which the premises are to be held liable ; which must be ascer- tained by the court, before decree- ing the sale, otherwise the decree will be erroneous. Cohen v. Car- roll, 5 S. & M. 545. 71. Where' a decree of sale of property is made, it is generally left to counsel to designate the length of time and mode of pub- lication of notice of the sale ; the court taking care that the notice is reasonable and fair. Guise v. Mid- dleton, 1 S. & M. Ch. 89. 72. A decree cannot be amend- ed after it is enrolled, in a matter of materiality, unless the record exhibits something to amend by ; a mere clerical mistake,- or mis- calculation may be amended at any time, where the mistake is apparent on the face of the decree or record ; but where a decree by mistake, required certain property to be advertised for six months for sale, when it was intended to be advertised for only six weeks, and the decree had been enrolled, the court refused to amend it. lb. 73. Where a suit in chancery was brought against several parties, and the complainant submitted, the case for decree against two upon their answers, and stated, in a pa- per filed in the case, that he sought no decree against the others who had not been served with process, and a decree was rendered against the two who had answered and consented to the decree, taking no notice of the others ; held, that as to the two who had answered and assented to the decree, a failure to dismiss formally as to the others could not be taken advantage of; and ■ that the written statement that no decree was sought against them was equivalent to a dis- missal. Pipkin V. Haun, Freem. Ch. 254. 74. Whether a motion to vacate i a decree, a year after it has been j enrolled, can be entertained, even j though the decree were fatally de-; fective, Qucere 7 lb. » 75. A decree which orders the payment of money, will not be set aside on the ground that the. de- fendant therein had been enjoined, in a previous suit at the instance of a third party, from paying the money over, where the defendant in his answer makes no mention of such injunction, lb. j. Demurrer. 76. An appeal may be taken from chancery upon a decision on demurrer, and the defendants are not bound to answer before a deci- sion on the appeal. Montgomery V. Norris, 1 How. 499. 77. Where a demurrer is impro- perly overruled and the defendants answer, the propriety of overruling the demurrer will be open for in- vestigation. McNeil V. Burton, 1 How. 510. k. Depositions. 78. Depositions taken to be read on behalf of defendants to the original bill, upon notice given by counsel, not representing any of the defendants to that bill, are ir- regulary taken, and will be sup- CHANCERY. 117 pressed. Payne v. Cowan, 1 S. &5 M. Ch. 26. 79. It is a sufficient ground to suppress a deposition that the wit- ness testifying is a defendant to the original bill, and no order of court had been given authorizing his deposition to be taken. lb. 80. A deposition will be sup- pressed only for irregularity in the taking it ; if the objection relates' to the competency of the witness, it can only be made at the final hbaring. Gordon v. Watkins, 1 S. & M. Ch. 37. ' 81. A commission is not neces- ; sary, under the present practice of the superior court of chancery, to take depositions ; they can be' tak- en on notice ; justices' of the peace are authorized to take them. lb. 82. The evidence of service of a notice to take depositions must be by the return of the sheriff or affidavit of the party serving the notice. lb. 1. Dismissal, effect of. 83. A dismissal of a bill in chan- cery for want of prosecution is not a bar to a futuife suit for the same cause. Nevill v. Matthews, Walk. 377. m. Fraud. See infra. Chancery, tit. Juris- diction ; also Fraud and Fraud- ulent Conveyances, passim. 84. A. agreed In writing to pay certain expressed debts of B. as set, forth in a schedule, and re- ceived property of B. therefor ; B. fraudulently inserted in the schedule other debts not agreed to be paid by A., and in reading the sched- ule over to A. omitted to read such inserted debts; the surety in one of the fraudulently inserted debts having paid it, filed a bill to charge A. as trustee of B. with the debt thus paid ; held, that A. was not liable, nor the property in his hands, to pay such fraudulently inserted debts. Stamps v. Bracy, 1 How. 312. 85. D. sold M. • a tract of land and negroes, .and represented at the time that the title was good ; to eighteen of the slaves thus sold D. had no title, they being settled by deed upon his wife and children ; M. on ascertaining this fact filed his bill in chancery for a rescission of the contract, charging the fraud- ulent suppression by D. of the ab- sence of title in him to the eighteen slaves, and his fraudulent represent- ation of good title ; D. answered and denied fraud generally, but ad- mitted his failure to inform M. of the deed to his wife and children, and said he had always thought the deed did not affect the title, and he had forgotten it at the time ; and at the same time D. filed with his an- swer a bill of sale from his wife and children in whom the title was, to M. to the slaves, thus perfecting the title in M. ; held, that D.'s con* duct in suppressing the want of title to the eighteen slaves and repre- senting his title good was fraudu- lent as to M., and entitled him to a rescission of the contract ; but that as D. had perfected the title to the slaves, and M. had suffered no ac- tual injury by the fraud practised upon him, the fraud would be cured by the perfection of the title, and M. could not have a rescission of the contract. Davidson v. Moss, 5 How. 673 ; the same doctrine, that fraud without damage does not vitiate a contract, is held in Moss v. Davidson, 1 S. & M. 112; Hall v, Thompson, 1 S. & M. 443. 86. See Fraud, 10; how far representations known by vendor 118 CHANCERY, and vendee to be untrue as to the prospects and character of town lots sold, will be fraudulent as to vendee. 87. If a bill contain an alleg3,tion of fraud, it is a general . rule that such allegation must be answered, and a general demurrer cannot be allowed. - Stovall v. The Northern Bank, 5 S. & M. 17. 88. Where fraud is charged gen- erally in a bill and the answer de- nies it and the case is submitted without proof, the court will decree as if no fraud had been charged. SiulMefield v. McRaven, 5 S. & M. 130. 89. Fraud vacates all contracts, and whenever it is charged must be answered ; yet if the fraud be charged in a case which will not justify the rescission of the contract, or in a case in which the court can- not give relief, it need not be an- swered. Walker v. Gilbert, 7 S. «fe M. 456. 90. It is well established that if a party has a knowledge that he has been defrauded, and yet subse- quently confirms the original con- tract by making new agreements, and engagements respecting it, he thereby waives the fraud, and aban- dons his claim to equitable relief. Edwards v. Roberts, 7 S. & M. 544 ; • to- same effect, Pintard v. Martin, 1 S. & M. Oh. 126. 91. E. purchased of R. certain lands, and took a bond for title, and becoming apprehensive that R. would not be able to make a good title to all of the land embraced in the purchase, he instituted suit on the bond ; pending the suit it was agreed by the parties to sub- mit to arbitration the amount to be allowed E. in the premises ; the arbitrators not being able to agree, E. & R. determine to di- vide the difference that existed be- tween the arbitrators, and an award was made accordingly, which was recorded as part of the proceeding in the action on the title bond, and entered as the judgment of the court ; and E. gave to R. a new note in accordance with the terms of the award ; held, that whatever might have been E.'s equitable right to relief, on account of fraud practised upon him in the sale of the land, by consenting to abide the result of an arbitration upon tfie matters in dispute and giving a new note in accordance with the terms of the award, he virtually re-affirmed the contract and relinquished any right to relief he might have previously possessed, lb. Edwards v. Rob- erts, 7 S. & M. 544. 92. Where a vendee comes to the knowledge of a fraud practised upon him in the sale of property ; and afterwards continues for a se- ries of years in the use, enjoyment and occupation thereof, without taking, any active measures for re- dress, or making known any dis- satisfaction; until a change of times may have depreciated its value, he can have no relief in equity. Pin- tard V. Martin, 1 S. & M. Ch. 126. n. Infants. 93. See Infants, 3. No decree i can be rendered against infants without proof; and reservation of a day, to show' cause, &c., does not cure the error ; such reservation extends only to defects ui the .de- cree. 94. An infant who is made a party defendant to a bill, for a specific performance of a contract by his ancestor, will be entitled .un- der a general answer to avail him- self of the statute of frauds ; the rights of infants cannot be preju- CHANCERY. 119 / diced by any omission of their , guardian ad litem. Hood v. Sovi- \ man., Freem. Ch. 290. See infra. Infancy. o. Injunction. 95. An injunction, requested ap- parently upon principles of justice and equity, should be granted in the first instance. Lee ii: Montgomery, Walk. 109. 96. See Executor and Adminis- trator, 5, «s to right to injunction to restrain escheater' general from collecting effects of alien deceased. 97. See Waste, 1. When in- junctioPwill and will not lie to stay waste. 98. See Injunction, 1 ; as to duty of clerk, in issuing injunction, to indorse on it, " its efficacy sus- pended until bond is given." 99. A plaintiffto a bill for injunc- tion to stay waste, who admits the possession of the land by the de- fendant claiming and holding ad- versely, is not entitled to the injunc- tion ; nor should an injunction to stay waste be granted even against a trespasser, unless upon unques- tionable evidence of title, and where the threatened trespass would be irreparable. Nevitt v. Gillespie, 1 How. 108. 100. To grant continuance and dissolution of injunctions is in the discretion of the court ; they may be dissolved before answer or after, or after demurrer. Jones v. Com- mercial Bank of Columbus, 5 How. 43. 101. Where a defendant at law trainsfers his case to a court of equity upon an allegation, that his defence is equitable, the plaintiff at law should always be allowed to ^ proceed to judgment in order that he may have execution . thereof \ without delay, if the defence to his action is not sustained in equity.'. Anderson v. Walton, Freem. Ch. i 347. 102. The answer of one not a party to the suit, or of one who swears to his "information and beUef" where the facts are not charged to lie within his knowledge, and who does not set out his means of knowing, will not entitle him to the dissolution of an injunction granted on positive allegation in the bill. McGuffie v. The Plan- ters Bank, Freem. Ch. 383. 108. A release of errors to a judgment at law is only required where the defendant therein seeks relief' in chancery, not where a third party is applying for an in- junction against . the execution oi) the judgment being levied, on his property ; a formal release of er- rors, it seems, is not requisite; the emanation of the injunction itself, it , "> seems, will be ipso facto a release Ij '-' ' ' of errors. Sevier v. Ross, Freem. ' Ch. 519. 104. The neglect of the cora^ plainants to have process served is just ground for dissolving an injunc- tion in the case ; the rule is based on the ground of negligence, and will riot apply where process has been regularly sued out but irregu- larly served, and the plaintiff has taken out new process as soon as the irregularity is detected. Payne V. Cowan, 1 S. & M. Ch. 26. 105. A party having a valid de- fence to a portion of the amount of a judgment at law, cannot have an injunction for the whole amount of the judgment. Commis^rs Sinking Fund V. Patrick, IS.&M. Ch. 110. See infra. Injunction and In- junction Bond. p. Issue out of Chancery. 106. It is in the discretion of the 120 CHANCERY. chancellor to award an issue to the country or decide upon the facts himself ; if he award an issue, however greatly the preponderance of facts in the case, it will be no ground of error. Her v. Routh, 3 How. 276. 107. The chancell6r may with- draw an issue to the country with- out waiting its decision, and may decide the case himself. Cook v. Bay, 4 How. 485. 108. A court of chancery has power to award an issue to ascer- tain the fact of the loss of a note sued for. Truly v. Lane, ■ T S. & M. 325. 109. Exceptions to the opinion of the chancellor on the trial of an issue before him., excluding or ad- mitting testimony, must be taken at the time and entered upon the minutes. Mclntyre v. Ledyard, 1 S. & M. Ch. 91. 110. Oral evidence will not in any case be admitted on the trial of an issue in the chancery court ; not even to prove the incompe- tency, show the interest, or attack the credibility of the witness. lb. q. Jurisdiction ; and herein of Fraud, Accident, Mistake, Re- scission of Contracts, Cancelment of Ileeds, and the general princi- ples of Jurisdiction. 111. If the equity of complain- ant and defendant be equal, the courts of chancery will not inter- fere. Lee V. Montgomery, Walk. 109. 112. See Evidence, 183, 184. When relief will be granted in equity for failure of consideration to note given for land ; and how far parol evidence admissible to show inistake in the quantity of land called for by the deed. 113. Where the quantity of acres warranted in a deed is not to be had, if the failure be total, it can be taken advantage of at law ; if partial, only in equity. Kerr v. Calvit, Walk. 115. 1 14. See Bill of Exchange and Promissory Note, 1 ; for jurisdic- tion of equity as to relief of surety on note where he is injured by fail- ure to sue the principal. 115. A resident in Louisiana having great domestic dissentions with his wife, whereby his mind is perturbed, and being natural- ly of weak intellects, and sup- posing that his wife has rights in his property which she has 9o\, is in- duced by.B., in order to get rid of these supposed rights of his wife, to make a sham conveyance for nom- inal, but no real consideration, of the property to B. by absolute deed, and to put B. in possession ; held, that a court of equity, under the cir- cumstances, would, at the instance of A., and on his bill, set his deed to B. aside, and decree B. to baa trus- tee of A. of the profits and increase of the property since the sham sale to B. Dismukes v. Terry, Walk. 197. 116. A trust may be established by parol in favor of one party against his absolute deed and the denial of the other ; and though a particeps criminis in fraud, cannot succeed agElinst the other party, yet a deed made to bar supposed rights of a wife, will be set aside at the instance of the grantor, if the gran- tee attempt to pervert it to fraudu- , lent purposes. lb. 117. When the defendant in chancery, to a bill to enjoin judg- ment at law, answers to the merits, it is too late at the hearing to object that the defence was at law. Mc- Cauley v. Mardis, Walk. 307. 118. A court of chancery has jurisdiction, even after judgment at CHANCERY. 121 law thereon, to declare a note given for a gaming consideration, void under revised code, 326, ■§ 22. lb. 119. After judgment at law a court of chancery will grant no re- lief, unless upon grounds not avail- able at law, or unless the party was prevented by fraud or accident or act of the other party without fault of his own, from making defence at law. Miller v. Doxey, Walk. 329. 120. A party cannot sue in equi- ty for negroes, the possession of whom he claims a right to, by deed of gift, his remedy is at law ; and where he has filed his bill, claiming his slaves under an instrument as a deed of gift, he cannot afterwards, on the trial, insist that the deed is a will. Bales v. Bates, Walk. 356. 121. On a bill filed to enjoin a judgment at law, the complainant cannot set up any matter of which he might have availed himself at law. Monlgomery v. Griffin, Walk. 453. 122. It is not a. sufficient aver- ment, to set aside a voluntary deed as fraudulent, that " the grantor was indebted for transactions before and since the transfer, and that with- out the property transferred there will not be enough to pay his debts." Miles V. Richards, Walk. 477. 123. Thechancery courts of this state will not entertain an inquiry into a charge of fraud against a patentee of the United States gov- ernment, at the instance of a volun- teer, and liot directed by the gov- ernment, Russw. Barland, Walk. 489. 124. Where the remedy is pure- ly legal a court of equity, even af- ter answer, will not entertain juris- diction. Bimiey v. Turner, Walk. 498. 125. Courts of equity do not in- 11 terpose where purely legal ques- tions are involved, except where the remedy at law is not clear, certain or adequate ; or to prevent a mul- tiplicity of actions- where the sub- ject-matter of the contest is held by one individual, and to which there are many claimants from a com- mon source and with distinct inter- ests ; or with a view to prevent ru- inSus litigation where the party has satisfactorily estdblished his right at law. Nevilt v. Gillespie, 1 How. 108. 126. Where there are only two claimants to land, a court of equity will not entertain a bill of peace un- til the right of one is fully estab- lished at law. lb. 127. A defendant^ in trespass who, having a legal defence, has suffered judgment to go by default agairist him, can have no relief in equity against such judgmerlt. lb. 128. The court of chancery has jurisdiction of a bill filed by an ex- ecutor, whose letters testamentary have been revoked, against the heirs of his testator, to make the proper- ty of their ancestor liable for debts due by the ancestor to the execu- tor, and not retained by him ; and also for sums of mon'ey legally dis- bursed by him in the payment of debts of the testator of a kind that he was, under the statute, authorized to pay. Gild-art v. Starke, 1 How. 450. 129. Where ati. executor w^e letters have been revoked, is eS^- ing to make his testator's estate lia- ble for debts paid and money ad- vanced by him, his only remedy is in equity ; but he must show that the debts he paid' were such as he was authorized to pay under the law, and that the money he ad- vanced was in the legitimate dis- charge of his executorial duties ; 132 CHANCERY. and if he he allowed his account without such proof it will be erro- neous, lb. 130. It is too late after answer, at the hearing on the merits, to ob- ject to the jurisdiction of the court, unless, perhaps in a case purely le- gal. Cable V. Martin, 1 How. 558. 131. Where the remedy is more complete in a court of chancery than at law, the former will take jurisdiction ; as where the distribu- tees of an estate are seeking to re- cover the property of their ances- tor, and also the profits of it from the former administrator and other persons in possession of the prop- erty, claiming under him ; even though they might have a remedy at \aw, they will he entitled also to relief in equity ; especially if the' property sought by the distributees was owned in part by the adminis- trator in his own right, the interposi- tion of a court of equity will be es- sential to settle the. matters of ac- count between the parties. lb. ; also, McRea v: Walker, 4 How. 455. It seems it would be other- wise, if the administrator were the only party.' Baines v. McGee, 1 S. & M. 208. 132. See Covenant, 1, 2 ; for ju- risdiction of chancery to enforce credits when an action is brought on a covenant sounding in dam- ages ; and also to establish the dis- charge of a covenant by a subse- quent parol contract. 133. Courts of equity will cor- rect mistakes in a written instru- ment in order to carry clearly into effect the intention of the parties^ but the proof should be clear be- yond a doubt ; the court therefore refused to decree that a paper, which on its face was a testamentary dis- position of property, and which the maker read over carefully, and un- derstood fully when it was made, was a deed of gift; though the maker called the paper a deed and spoke of it as though- it were irre- vocable by her ; yet also spoke of persons, who were the beneficiaries in it, as her intended heirs ; and said she designed them to heiv her property ; and afleTwards changed her mind, regretted she could not dispose of her ' property other- wise than by the instrument she had made ; and finally made another will devising theproperty in anoth- er mode than that contained in the previous writing. Harrington v. Harrington, 2 How. 701. 134. Where a father, by instru- ment not under seal, conveyed certain negroes to his children and delivered a portion to them, but specified that he was to retain the residue during his own life ; the delivery will pass to the children the title to those delivered, but the instrument will be inoperative as to those retained, and will be decreed to be cancelled on the application of the father. 'Thomp- ' son v. Thompson, 2 How. 737. 135. See Will, 10; for juris- diction of chancery, over. 136. See Execulers and Admin- islralors, 35; infra, 141; and Probate Court, 8, for limit of ju- risdiction in matters testamentary. 137. The act of the legislature, giving to the court of chancery jurisdiction of causes where the state is a party, does not enlarge the jurisdiction of the chancery court ; but confines it to cases of equity cognizance only, in which the state is a party ; that court will have no jurisdiction, therefore, of a bill against the state to -recover damages for a breach of contract. Parish v. The State, 2 How. 826, Sed aliter ; the court of chancery CHANCERY. 123 has full jurisdiction where the state is a party, whether the claim be legal or equitable in its nature. Parish v. The Stale, 4 How- 1*70. 138. Where a judgment has been rendered in a court of law, in an action of trover for property claimed under a marriage contract, and in the suit at law the contract has received a construction ; a court of equity will not take juris- diction of a suit between the same parties about the same property, claimed under the same marriage articles. Hooke v. Wood., 2 How. 867. 139. A court of equity will cor- rect a mistake in the description of lands in a deed. Leonard v. Austin, 2 How. 888. 140. Where a bill was filed by an administrator of A., praying that a decree might be opened by which property claimed- by A., as one of the distributees and heirs of B., had been adjudged to C, and a demurrer to that bill overruled ; and the complainant therein after- wards filed an amended bill and made the heirs at law of A. joint complainants in it with him, and the chancellor sustained a demur- rer to the whole bill thus amended ; held, to be properly done. . Scott V. Calvit, 3 How. 148. 141. As a general rule the chancery court in this state has no jurisdiction over the matters con- fided by the constitution to the pro- bate court ; but if the probate court be incompetent to give relief, and the remedy be not lost by laches, a court of equity will entertain ju- risdiction; but in almost every case touching the subject of its jurisdiction the probate .court has ample power of relief. Cnrmichael V. Browder, 3 How. 252. The court of chancery has jurisdiction where there is no administrator ; as, where the widow has taken pos- session of the property without administering, the heirs and de- visees may sue her in equity for account and othfer relief. Farv& v. Graves, 4 S. & M. 707. 142. Where a bill was filed against C, by the heirs at law of H., some of whom were infants, al- leging that he had taken possession of their land and used it for years, and seeking an account of rents and profits ; lield, that the chance- ry court had jurisdiction on ac- count of the infancy of a portion of the complainants. Carmichael V. Hunter, 4 How. 308. 143. Where there has been no fraud on the part of the ven- dor of land, the vendee cannot come into equity to get a rescis- sion of his contract, he must look to his covenants of warranty ; but if there has been fraud, equity will grant relief even after judgment at law for the purchase-money ; and any misrepresentation of the vendor or concealment in relation to the title to the land, by which the vendee is deceived to his inju- ry, whether intentional or not on the part of the vendor, will be fraudulent ; where, therefore, A. knowing his title to 570 acres of • the land to be defective, represent- ed to B. that the title was good, and sold B. 630 acres, including the defective part, and also sold him certain slaves and farming utensils with the land by an entire contract, and B. executed his notes in instalments for the purchase- money, upon which judgments at law were rendered in favor of the assignee of A. against B. ; held, that B. would be e'ntitled to relief against the fraudulent representa- tions of A.,- though he had not 184 CHANCERY. been, evicted, and though the out- standing title was on the record ; and that B. would be entitled to a rescission of the contract, which being entire, on the failure of a ma- terial part, must be all rescinded. Parham v. Randolph, 4 How. 435. 144. A court of chanceiy will entertain jurisdiction to decree that family servants be specifically de- livered up, even though detinue or trover might be maintained at law McRea v. Walker, 4 How. 455. 145. See Slaves, 19; how far court of equity will grant relief, after judgment at law on void con- tract. It will not do so, in any case where the defence existed and might have been made at law and was not so made ; even though the contract on which the judgment was founded were absolutely void as against public policy and a posi- tive prohibition in the constitution ; in cases of concurrent jurisdiction the court first taking it, will de- cide finally. Green v. Robinson, 5 How. 80 ; GUdewell v. Hile, 5 How. 110;. Thomas v. Phillips, 4 S. & M. 358. 146. It is no ground for vacating a sheriff's sale that the property sold low, under a mistaken belief that it was bound by a prior mort- gage lien, and that the true condi- tion of the title was known to the purchaser, where a reasonable in- quiry could have corrected the mis- take in relation to the incumbrance. Drake v. Collins, 5 How. 253. 147. A purchaser of land who is in possession, cannot have relief in equity against his contract to pay, on the mere ground of defect in title, without a previous eviction ; unless the vendor has been guilty of fraud in suppressing the defects ; but if the vendee had full notice of the defect, he can have no re- lief in equity. Anderson v. Lincoln, 5 How. 279 ; Green v. Pimicane, 5 How. 542. 148. A charge of fraud in a bill, must be answered ; a demurrer ad- mits the facts as charged, and if fraud be charged, it gives the court jurisdiction and must therefore be answered, even though the defence be made by plea. Niles\. Ander- son, 5 How. 365. 149. See Chickasaws and Chick- asaw Treaty, 3, for a case of re- lief in equity granted to the holder of an equitable title against a party who had obtained by fraud a seem- ing legal title. 150. A court of chancery will not interfere to stop a mere tres- pass ; where therefore B. filed his bill, alleging that he had by law an exclusive privilege to erect a bridge and charge toll ov.er a cer-' tain river, and that V. had entered on complainant's land, and with complainant's timber was proceed- ing to erect a bridge over the same river to be free,; held, that V.'s conduct was a mere trespass for which B. had an ample remedy at law. Bleioilt v. Vaughn, 5 How. 418. 151. See Real Estate, 11 and 12 ; when chancellor will not re- scind contract for defect in title, where there has been no eviction and the covenants are indepen- dent. 152. The court of -chancery has jurisdiction to decree that a bond which is void both at law and in equity, shall be cancelled. Sessions V. Jones, 6 How. 123. 153. Where a party who had made a deed of trust, on land to secure an usurious debt, filed a bill to enjoin a sale under it ; and af- terward on being sued at law on the CITANCERY. 125 debt, and suffering judgment to go against him, filed an amended bill to get relief from that judgment ; held, that no relief could be granted on the amended bill ; he should haye de- fended at law. McRaven v. Forbes, 6 How. 569. 154. A court of chancery has no jurisdiction to award an issue of devisavit vel non, on application of the parties interested ; the power to do so, under the laws of this state, resides alone in the probate court. Hamherlin v. Terry, 1 How. 143. 155. See Trmt, <^c., 15; for jurisdiction of equity to force a set- tlement of a deed of trust, and have a sale of the trust property by a creditor not embraced in it. 156. After judgment at law by a court having jurisdiction, a court of chancery cannot again revise the subject of the suit at law ; it is res adjudicata. Houston v. Roys- ton, 1 S. & M. 238. • 157. From the peculiar charac- ter of slave property, a bill in chancery, it seems, will lie to re- cover them in specie. Murphy v. Clark, 1 S. & M. 221 ; Sevier v. Ross, Freem. Ch. 519. 158. See Vendor and Vendee, 11 ; under what circumstances a court of chancery will decree a rescission of contract for sale of land. 159. A court of chancery vifill not interfere to prevent a sale of personal property unless it be of some peculiar character, as slaves, | or have some particular value by j reason of which damages might not afford an adequate compensation' for its loss ; the remedy is at law. I Bealty v. Smith, 2 S. & M. 567. 160. See Executor and Admin- istralor^ 79 ; a court of chancery has jurisdiction of a bill by an ad- 11* ministrator de lonis non to recover the possession of a note improperly transferred by the administrator, and also to enforce the statutory lien on it. 161. Courts of equity will inter- fere to correct mistakes between the original parties or those claim-i ing under them in privity, as heirs, devisees, legatees, assignees, volun- tary grantees, judgment creditors or purchasers from them with notice ; where therefore N., being indebted to S. & Co., by mistake conveyed to them in trust the north-east quar- ter of a section of land which he did not owii, supposing that he was conveying the south-east quarter, which he did own and- lived on ; and as soon as the mistake was dis- covered, N. gave the trustees a power of attorney to rectify it, which power was recorded ; before the mistake was discovered judg- ments were rendered against N. and executions levied on the south- east quarter of the section ; at the sale the trustees attended and pro- claimed the facts and warned per- sons not to buy ; the sheriff sold and conveyed under the judgments. Held, that a court of chancery would decree the sheriff's deed to be cancelled, and would correct the mistake in the deed. Simmons y. North, 3 S. & M. 67. 162, It is no valid reason for not making defence at law, that the counsel of the party failing to make the defence was indisposed ; more especially where the names of two attorneys are filed to his pleadings in the court at law ; he should be present himself. Yeizer v. Burke, 3 S. & M. 439. 163. The superior court of chan- cery has not j^irisdiction to assist the inortgagee of property, who has obtained a decree of foreclosure in 126 CHANCEllt. the circuit court ; the latter court is fully able to carry its decree into effect ; where, theijefore, a decree of foreclosure was rendered in the circuit court, the mortgaged pro- perty sold under it and execution issued afterward .on the sale bond, and the mortgaged property again sold, but the sheriif appropriated the proceeds of sale to senior judg- ments against the purchaser at the first sale, to which appropriation the mortgagee took no exception, and at the last sale the mortgaged property was again purchased by another party, but really for the benefit of the purchaser at the first sale, and the mortgagee filed his bill in the superior court of chan- cery, to have his decree of fore- closure satisfied out of the mort- gaged property ; held, the chan- cery court had no jurisdiction. Tooley v. Gridley, 3 S. & M. 493. 164. If a wrong-doer has ob- tained the advantage in a court of law by hiding the real character of the transaction under a trustee's name ; a court of equity will lend its aid to place the party injured in the situation he would have been in provided no fraud had been com- mitted; Where therefore, E. being a private banker, discounted a note for S., but had the note made pay- able to a banking company, to which E. alleged that it was to be assigned ; and on the maturity of the note, E. sued S. upon it in the name of and for the use of the bank, though in reality the bank had no interest in the claim ; held, that S. would notwithstanding have the right to interpose any claim he might have against the bank as an ofl^set, and if he were prevented by accident from interposing the offset at law, a court of equity will grant him relief Slovall v. The Northern Bank, 5 S. & M. 17. 165. Although the rule of law, which prohibits the admissibility of parol proof to vary written in- struments, in general prevails in equity, yet where from mistake or fraud the writing does not truly ex- press the intention of the parties, a court of equity admits parol proof to carry the intention into effect ; where therefore, a note on its face, bore interest at the rate of ten per cent., and purported to be for a bona fide loan of money, it was held competent to show by parol, that the note was given in part pay- ment for a tract of land, and not for a loan of money. Elliott v. Connell, 5S. &M. 91. 166. The chancery court cannot entertain a bill to review an admin- istration, after it has been finally settled in the probate court, where the parties in interest "had a fair op- portunity of being heard ; but if the executor, after he has been dis- charged from his trust, and letters de ionis nnn been granted to an- other party, attempt to collect the assets of the estate, a court of chancery will enjoin him there- from, at the instance of the admin- istrator. Sluhhlefieldv. McRaven, 5 S. & M. 130. 167. A note secured by a deed of trust, belonging to a judgment debtor, may be subjected in equity by the judgment creditor to the satisfaction of his judgment, upon his having obtained at law a return of mdla bona ; and a sale under the deed of trust will be ordered, to pay it. Cohen v. Carroll, 5 S. & M. 545. 168. See Distribution, 8. The chancery court has no jurisdiction of a bill, by a party alleging him- self to be a distributee, whose CHANCERY. 127 claims have been overlooked in the distribution in the probate court ; his remedy is in the latter court. 169. After judgment at. law, equity cannot interpose to set it aside, upon grounds which might have been used as a defence at law, unless it were obtained by fraud. Benton v. Crowder, 7 S. & M. 185. 170. A court of chancery has jurisdiction of a bill, to recover of the maker the amount of a lost note ;. but will require a bond of in- demnity against the note, and dam- ages that might arise out of another suit. Truly -v. Lane, 7 S. & M. 325. 171. N. filed a bill in equity to obtain relief against a judgment at law, in favor of D. on a note, which he averred he executed as a surety for the principal therein, with the understanding that D. was to be a co-surety with him, but that D. was made payee, and in- dors6d the note as accommodation indorser to the person for whom it was intended, and when the note became due, D. took it up and sued him thereon, and obtained the judg- merft at law ; hdd, that the appli- cation came too late, and N. was concluded by the judgment at law. Wellons V. Newell, 7 S. & M. 399. , 172. See Railroad, 6. A court of chancery may enjoin a railroad company from running their cars over a road, the right of way over whith, they have not paid for. 173. W. leased to J. a tract of land for ninety-nine years, and placed J., in possession ; J. being fully acquainted with the nature of W.'s title at the time ; J. after- wards refused to comply with his contract, and abandoned the pos- session of the premises ; where- upon W. sued him, and recovered judgment at law "for the considera- tion of the lease ; J. then filed a bill to set aside the lease, recover back the money he had paid on it, and enjoin perpetually the judg- ment, on the ground of the statute of frauds and the defect of W.'s ti- tle ; it being shown thal'W. was wholly divested of title, between the date of the lease and the filing of the bill, but that his title was perfect at the time the bill was filed ; no fraud was proved' against W. : Heidi that J. showed no equi- table ground of relief, and that his bill should be dismissed. Jenkins y. Whitehead,! S.&,m. 577. 174. Apurchaser of real estate, at a sheriff^s sale, may come into equity for the purpose of setting aside a deed to the property, which had been made to defraud the judgment creditor ; the purchaser, in such case, succeeds to all the rights which the judgment creditor had' against such fraudulent deed. Matjs V. Rose, Free. Ch. 703. 175. See Will, 31-44. How far court of chancery may enforce the execution of trusts arising un- der a will, where the probate court cannot give complete relief; and also of the jurisdiction of equity, to compel an executor .to carry into execution the trusts of a will, order- ing certain slaves to be sent to Li- beria ; and also as to jurisdiction of equity over charitable bequests ; and whether the statute of 43 Eliz. is in force here on that subject. 176. A creditor of the estate of a deceased person, cannot come in- to equity to subject to the satisfac- tion of his debt, property, of the de- cedent, in the hands of a third per- son who has intermeddled with, and possessed himself thereof, in such case the creditor has a plain, adequate, unembarrassed remedy 128 CHANCERY. at law. Pleasant»v. Glasscock, 1 S. & M. Ch. 17. 177. See Executor and Adrrdnist trator ; for jurisdiction of bill of discovery against ; and also against executor de son. tort. 178. An agreement between two parties that one shall hold in his name, the property of the other, and shall pay with it the debts of the lattfer, and use it as he may di- reot, is such an agreement as a court of equity will enforce as be- tween the parties ; and it can only be assailed as betw-een the creditors who are thereby defrauded ; where, therefore, E. filed his bill stating that he held property of W. in se- cret trust for the benefit of W., and to secure advances of his for W. ; that W. was in arrear for money then advanced, and had fraudulently procured G. to become thfe purchaser with W.'s money at a tax sale of the property so held by E., and seeking to subject the property in the hands of G. to the advance so made ; held, that a court of equity would have juris- diction of the case ; upon the an- swer however of G. denying the fraud, and it not being established by proof, the jurisdiction would cease. Eoerett v. Winn, 1 S. &5 M..Ch. 67. 179. See Bond of Indemnity, for jurisdiction to decree specific performance of. 180. A. having made a payment on a note which is credited on the back of it, being sued at law upon the note and permitting judgment to be rendered against him for the whole amount of the note, without pleading payment or calling the at- tention of the court and jury to the credit, is not entitled from his negli- gence, to relief in equity. Commis- sioners of the Sinking Fund v. Pat- rick, I S. &M. Ch. 110. 181. After general answer the defendant cannot raise the question of jfirisdiction on the hearing, unless the defect of jurisdiction, go to the very subject-matter of the suit. Davis V. Roberts, 1 S. & M. Ch. 543. 182. J. H. executed a note with W. H. as surety, to L., M. & Co., and to indemnify W. H., S. H. conveyed^roperty in trust to T ; L., M. & Co. transferred the note to D. who, J. H. becoming .insolvent, filed a bill to subject the property conveyed in trust to T., to the satisfaction of his debt ; held, that the trust property was liable in equity for the payinent of the note in the hands of the assignee. Bick v. Truly, 1 S. & M. Ch. 557. 18S. A judgment in Tennessee and return of 7iuUa bona upon an execution thereon, are not sufficient foundation to apply to a court of equity in this state, to subject the choses in action of the judgment debtor, to the payment of his debt. lb. 184. See Will, 4^-49 ; for juris- diction over. 185. A creditor at large cannot come into a court of chancery, upon a purely legal claim, and enjoin, his debtor from selling, receiving or disposing of his effects. Free- man V. Finnall, 1 S. & M. Ch. 623. 186.' A bill uniting partnership and private demands, filed by one partner against another, is fatally defective. lb. 187. A court of chancery will subject the choses in action of a debtor, in the hands of a voluntary assignee, to the payment of a debt of a judgment creditor. WrighLw. Fetrie, 1 S. & M. Ch. 282. . 188. Where a judgment .creditor has his execution returned mdla CHANCERY. 129 bona, but afterwards leyies the same on personal property, in which the defendant in the exe- cution, has merely an equitable interest, and- pending the levy, files his bill in the court of chancery to subject the equitable interest of the defendant, to the payment of his judgment debt ; held, that the right of the complainant, to the equitable relief, was established by the return of nulla bona, and was not disprov- ed by the levy upon property, not subject to sale under execution. lb. ■189. Where trustees to whom personal property had been con- veyed to secure a debt, were about to sell, and were enjoined by the cestui que trust ; held, that -the judge granting the injunction had no authority to order the trustees to deliver the property into the com- plainant's possession on the unsup- ported showing of the bill. Martin V. Broadus, Freem. Ch. 35. 190. A court of equity will de- cree notes that have been paid and are outstanding in the hands of third persons, to be cancelled, even though claimed by assignees of the party to whom payment was made ; and a bill filed against such party and the various assignees of the paid note, will not be multifarious. Garrett v. Miss. Sf Ala. Railroad Co. Freem. Ch. 70. 191. Although a court of chan- cery will not ordinarily take juris- diction of a case for rent, yet where the time of payment or the amount to be paid is uncertain, or when the distress is evaded or obstructed by fraud, chancery will give re- lief. Dawson v. Williams, Freem. Ch. 99. 192. A court of chancery will keep an incumbrance alive, though seemingly extinguished, if it best' suit the purposes of justice and the intention of the parties ; as, where a third party bu^s a tract of land on which there is a deed of trust, and the money he pays is Appropriated to the extinguishment of the trust, and satisfaction is entered upon the face of it, a court of chancery will keep the trust alive in favor of such purchaser, against a judgment at law against the grantor, obtained since the execution of the deed of trust. M'Intyre v. Agricultural Bank, Freem. Ch. 105. 193. See Will ; for jurisdic- tion of equity to compel abatement of legacy or election of legatee to make void devise, valid. 194. A court of chancery will decree the cancelment of a deed which may enable the grantee therein to throw a cloud around the title; though no title whatever would pass by a sale from such grantee. Whitton v. ^mith, Freem. Ch. 231. 195. A court of chancery will give relief against' a judgment at law where the defence was of an equitable character and could not be made at law ; as where the claimant, in a trial of right of pro- perty under a junior judgment, pending the trial, has the property taken away from him by virtue of a senior judgment and execution thereon, a court of chancery will relieve him against a verdict and judgment on his claimant's bond at the suit of the junior judgment cre- ditor. Ferriday v. Selcer, Freem. Ch. 258. 196. After judgment at law, or opportunity to defend there, a court of chancery will grant no relief, though the contract, on which it was rendered, were absolutely void, either for fraud in the parties or il- legality in the contract ; a court of' law has cognizance of both, and a 130 CHANCERY. failure to defend there precludes relief in chancery. Allen v. Hop- son, Freem. Ch. 276 ; Lang v. U. S. Bank, lb. 375. 197. A court of chancery has no jurisdiction of a suit against one defendant, a non-resident, not serv- ed with process, and no proceeding in rem instituted against him. Hunt V, Johnson, Freem. Ch. 282. 198. In order to reach equitable assets or other things not subject to ' execution at law, the remedies at law must be exhausted by the re- turn of an execution unsatisfied ; and no state. of facts will excuse the omission of such return ; and where there. are several joint debt- ors, he must have the same return as to all, unless one of them should stand in the situation of a surety to the others. Parish v. Lewis, Freem. Ch. 299. 199. The rule is otherwise where you seek legal, assets and desire to remove obstacles which obstruct your course at law, there you need only show a judgment. lb. 200. Sbe Garnishment ; — fail- ure to defend suit by assignee of a note precludes the maker from set- ting up in equity a former judg- ment on the same note against him as a garnishee of the payee. 201. If remedy be at law, yet the defendant answer-generally, he waives the objection and cannot question the jurisdiction on the hearing. Osgood v. Brown,Freem. Gh. 392. r. Marshalling Assets. 202. Where there is a mortgage on slaves and a judgment lien older than the mortgage, a court of chancery will not annul a sale of the property embraced in the mort- gage, made under execution on the judgment, on the ground that there was other property of the mort- gagor sufficient to satisfy the judg- ment without resorting to the mort- gaged property ; such application comes too late after sale, though it would have been complied with, if made prior thereto. Drake v. CoU lins, 5 How. 253. • 203. Where a judgment has been obtained against three part- ners, and an execution has issued and been levied on. the property of one of the partners, which, subse- quent to the judgment, but prior to the levy, he had conveyed to trustees to secure a different in- debtedness ; a court of chancery will not, at the instance of such subsequent creditor, compel the judgment creditor to levy his ex- ecution equally on the property of the co-partners. Such decree would delay the judgment creditor until the partnership' accounts between the judgment debtors could be ad- justed, to ascertain which partner is entitled to contribution from the other partner, or else would con- vert a joint into a separate decree. Markham v. Caltit, 5 How. 427. 204. Where a judgment at law has been obtained against the vend- or of real estate, and prior to the sale and before a levy under it he sells a portion of the land to A., and af- terward a portion to B., and still a third portion to C, and the execu- tion on the judgment is levied on the portion sold to A., he can, by bill in equity, compel the judgment creditor to levy his execution on that property which the vendor aliened subsequently to the sale to him; nor can the portion sold to A. be subjected to the execution until the residue aliened subse- quently is exhausted. Patten v. The Agricultural . Bank, Freem. Ch. 419, (The decision in tlus CHANCERY. 131 case has been affirmed, on appeal, by the high court, of errors and appeals. The decision of that court will be found in vol. 8 of S. & M. Rep.) 205. A bill to marshal assets cannot be sustained where the fund, to which the junior incumbrancer seeks to turn the senior, is not fully adequate to the satisfaction of the prior lien, and the remedy for reaching it prompt and efficient ; a fund in litigation is therefore not such' a fund. Briggs v. Planters Bank, Freem. Ch. 574. 206. Where a bill was filed by the assignee of a note secured by mortgage against a prior judgment creditor, and also against the mort- gagor to marshal sissets, and the judgment creditor was permitted to proceed with his executioi) ; held, that the proper decree as between the other parties was to decree a sale of the mortgaged property, subject to the lien of the judgment creditor, lb. 207. The rule of marshalling assets, by which the personal prop- erty was first subject to debts, then the land descended, and then the land devised, is entirely consistent with our statute law. Fisk y, Mc- Niel, 1 How. 535. s. Mortgage. 208. See Mortgage, 10-13; where a bill of sale is held -to be a mortgage, and the answer of the defendant that he has bought the equity of redemption required to be proved. 209. See supra, Chancery, tit. Murshalling Assets. 210. A. & B. being indebted in a joint note to C, each executed mortgages upon their respective property to secure the note ; C. filed his bill against both to fore- close both mortgages ; held, on de- murrer to the bill, that it was not multifarious, and that a decree to foreclose both mortgages could be rendered at the same time. Wilcox V. Mills, 1 S. & M. Ch, 85. See infra, Morlgdge. t. New Trial ; and herein of Rea- sons for not making defence at law. 211. See New Trial, 27, when chancellor will grant new trial at law. ■213. Where a bill for a new trial at law makes out a proper case, and is taken for confessed, a decree for a new trial follows as a matter of course. Joslin v. Coffin, 5 How. 539. 213, Although a judgment with- out notice is void, if a bill be filed to obtain a new trial at law on the ground of want of notice of the pendency of the action, and the an- swer deny the want of notice, and there be no proof to sustain the alle- gation of the bill, it must be dismiss- ed, yet without prejudice if there has been no trial on the merits in the court below. Wellons v. Newell,'! S. & M. 399. 214. It is well settled in courts of equity as well as of law, that a party is ^not entitled to relief after verdict, upon, testimony, which with ordinary care and diligence he. might have procured and used upon the trial at law; a new trial will therefore not be granted by a court of equity, of a suit at law, wherein judgment was rendered in favor of the plaintiff for medical services on the ground of evidence discovered since the trial at law, which con- sisted of the opinions of physicians as to the value of the services ren- dered, and the nature of the dis- ease for attendance on which the 132 CHANCERY. fees were charged ; held, that or- dinary diligence would have dis- covered this testimony, and the new trial should not therefore be granted. Lee V. Hooker, 7 S. & M. 601. 2r5. R. obtained a judgment against F. in Louisiana by default, and bought a tract of land of -F. in discharge of the judgment, and gave a receipt accordingly ; subsequent- ly, R. fraudulently procure^ the judgment by default in Louisiana to be rendered final, and thereupon brought a record thereof to Missis- sippi and sued F., who permitted judgment to go by default and filed his bill, alleging as his reason for not defending at law, that the final judgment in Louisiana was junior to the date of the .receipt ; held, that the defence of F. was purely legal, and that the reason given for not making defence at .law was insufficient. Fletcher v. Rapp, 1 S. & M. Ch. 374. 216.- Courts of equity have power to grant new trials at law, where, from the fraud of the one party, or unavoidable accident or unforeseen necessity the other party, .without negligence on his part, has been unable to make out his case on the first trial. Herring v. Winans, 1 S. & M. Ch. 466. 217. H., being an old and infirm man, unable to read, and being sued out of the county of his resi- dence, sends to his lawyer, residing in the county where the suit is brought, the nature of his defence, and instructs him to defend the case ; the letter is lost in the trans- mission, and judgment is obtained against H. by default ; held, upon the application of H. for a new trial in a court of equity, that his excuse for not making his defence at law was sufficient. lb. 218. M. indorsed a note in favor of G,., upon which the maker after- wards paid part, and renewed the balance by a new note, which M. also indorsed ; suit was afterwards brought, and judgment obtained against M., when he exhibited his bill, stating that the note had been given for an illegal- consideration, which he was not aware of, until after judgment was given against him, and therefore he did not de- fend at law ; held, that the excuse for not making defence at law was insufficient, and equity would grant no relief; yet, where the makers of the note, when sued at law, had been released from their liability on the ground of the illegality of the consideration, the indorser who had made no defence in ignorance of the consideration, should be en- titled tQ relief and be- allowed to make the same defence. Miller V. Gaskins, 1 S. & M. Ch. 524. 219. An allegation, that the com- plainant did not acquire know- ledge of the defect of his vendor's (who was an administrator) power to sell, till after the judgment at law in favor of the. vendor, for the purchase-money, is sufficient ex- cuse, if true, for not having made the defence at law. Crisman v. Bensley, I S. & M. Ch 561. See infra. New Trial. u. Parlies. See Parlies, infra. 220. A party, materially inter- ested in the progress of the suit, ought to be made a party, 'and it will be error to decree affecting his rights without making him.such; as where a judgment creditor gar- nishees a debtor of his judgment debtor, and the judgment debtor answer that the garnisheed debt has been assigned, it will be error to make a decree without making the CHANCERY. 133 assignee a party. Carmaji v. Wat- son, 1 How. 333. 221. Where property has been sold under a judgment and bought by a third party, and still another party files a bill in equity, assert- ing title in the property thus sold, the judgment creditor, under whose judgment the property was sold, is not a proper party to the bill, and it will be multifarious as to him. Morris v. Dillard, 4 S. & M. 636. 222. An assignor of a note who has parted with all his right in it, and has no interest in the matters in controversy, and against whom no relief or discovery is prayed, held, on demurrer not to be a ne- cessary party to the bill. Everett V. Winn, 1 S. & M. Ch. 67. 233. A trustee to sell property, who has advertised it for sale, though the mere agent of the cestui que trust, and without interest in the controversy, is yet a proper party, to a bill file^, to enjoin the sale of the property embraced in the trust, on the ground of a fraud- ulent combination on the part of the cestui que trust and another per- son, to defraud the complainant of his right in the trust property. lb. 224. Where property is sold in Louisiana, at a probate sale, as the property of the succession and' the community of the deceased hus- band and of his wife, and a mort- gage is taken td secure the pur- chase-mpney, the .wife of the intes- tate is a proper' party, to a bill filed by the administrator of the has- band in Mississippi to foreclose the mortgage on the property which has been removed into Mississippi. Stacy V. Barker, 1 S. & M. Oh. 112. 225. Where the parties in inter- est are so numerous as to render it 12 inconvenient, if not impracticable, to make them all defendants with- out great delay and expense, 'and justice can be done between the parties before the court, without affecting the iijiterest of the others, the court will proceed to a deciee, notwithstanding the want of par- ties ; as where there are one hun- dred partners, who had each exe» cuted a mortgage to secure the debts of the partnership, and some of the partners were dead, leaving numerous representatives ; held, that the' mortgagee might foreclose each mortgage by a separate suit against each partner without making the others parties. Boisgerard v. Wall, 1 SC & M. Ch. 404. 226. A prior owner of a note who, while such, obtained judg- ment at law against the maker of the note, and afterwards, and while the note was lost, transferred the contents of the note, and the right to control its proceeds, has the legal title to the note, and, is a proper party to a bill filed to recover the amount of the lost note from the indorsers. Smith v. Walker, 1 S. & M. Ch. 432. 227. D. filed his bill against Y., executrix of W. Y., alleging that the estate of W. H. was indebted to him, and that W. Y., while ad- ministrator of W. H.'s estate, had rendered himself liable to that es- tate, and sought to subject that lia- bility to the payment of the debt of the estate of W. H. to him ; held, that the administrator, de bonis non, of W. H, was a necessary party to the suit, the estate of W. H.not being finally settled, or alleged to be insolvent; Davis v. Yerhy, 1 S. & M. Ch. 508. 228. P. and L. having sold land to H., and given bond for title, af- terwards sold and conveyed it to 134 .CHANCERY. B. and M., who had knowledge of the' prior sale ; H. filed his till to obtain a title and. did not ;make P. a party thereto ; held, that P. was not a necessary party thereto, the legal title being in B. and M., as trustees for H. Hines v'. Baine, 1 S. & M. Ch. 530. 229. Infants who take in remain- der, should be made parties to a bill touching the property. Hunt y. Booth, Freem. Ch. 215. V. Pleading, '; "230. .See Executors and Admin- istrators, c- 25, 26 and 27 ; as to miiltifariousness i,in suiag the same person in the same bill, as execu- tor and as guardian for neglect in ibofh cajjacities. 231. ■ Distinct matters against dif- ferent defendants cannot be claimed in the same bill; though if a "gene- ral' right be claimed, even though the defendants h.m4 distinct inter- ests, the bill will lie 5 as' where A. has a claim against B. who is dead, he may enforce his claim in equity against C. and D. and E. who were at diiferent times administrators of B. and against their respective sure- ties; but where one of these adminis- trators has died, and was guilty of a devastavit, for which the bill sought to make his individual es- tate liable ; the executor of C. and the sureties of the executor couM not be united in the same suit with D. and E. and their respective sure- ties, to obtain payment of the debt due by B., as there was no con- necting interest. McNeill v. Bur- ton, 1 How. 510. 232. Unconnected parties having a common inteijest centering in the point in issue in the cause, may unite in the same bill ; as where different judgment creditors of the saftie person, seek to subject his property to their judgments. Corn- stocky. Rayford, 1 S. & M. 423. 233. A bill framed with a two- fold aspect, either tp procure a specific delivery of property, or to enforce a supposed lien upon it, is not demurrable for duplicity ; as where an administrator sold, his in- testate's property at private sale, and the administrator de bonis nan sues either for the property or to enforce the statutory lien.. Baines V. McGee, 1 S< , 12* Stacy v. Barker, 1 S.,;& M. Ch. 112. 260. Where a bill is filed to. foreclose a mortgage on property in the h^^nds of thiVd persons, in possession of the property by title derived from ' the .mortgagoi^, "-the allegation that they held by,a,"pre- tended purchase," is equisralfent to a charge of notice of the mortgage. lb. . , 261. A vendee who wouhj ^jq.,, tect himself agamst a ^prioi equity,, upon the ground of he;ing a bona fide purchaser without' notice, mtist deny notice fully, /positively and precisely, even tiibugh it be not charged on the other side.. Jenkins v. Bodley, 1" S. dt M.. Ch. 338; Herring v. Wixums,. 1 S. & M. Ch. 466. 262. Want; of notice protects a ' purchaser against 'a latent equity only, not against the legal title ; ' in - the latter ease, the maxim, caveat emptor, applies. Jenkins v. Bod~ ley, IS. &M. Ch.338. z. Real. Estate. See infra, Real Estate, and Fen- dor dnS Tentl.ee.. 263. An injunction should be granted agEtinst the collection of the purehase-mohey, where there is a deficiency in the land. Simmons V. Lard, Walk 159. 264. See Real Estate, 4 and 5. As to rescission of contract for want of title to land. Gale v. Green, Walk. 159 ; and for mutual' error as to ownership, Harrison v. Stow- ers. Walk. 165. 265. See Real Estate, 7 ; where vendor has no title and vendee not evicted, vendor can, recovef pur- chase-money. 266.' A court of chancery will not enforce the execution of a con- tract for the sale of a house andL 138 CHANCERY. lot, where only half the house and ground can be obtained. Terrell V. Farrar, Walk. 417. 267. See Chancery, title Time ; when time is of the essence of a contract in equity, and when hold- er of a legal title .as security for the payment of a debt due for the purchase-money, will be decreed to .convey to the debtor though he has not paid the debt at the stipu- lated time. 268. The vendor's equitable lien for the unpaid .purchase-money of land does not pass to his assignee of the note given for the payment of such • purchase-mbney ; but it seems if the vendor take up the note, the lien will be restored to him, Briggs v. Bill, 6 How. 362. 269. Where the vendor of land has given a tillg' bond to the ven- dee to make title Ivhen the purchase- money is paid, aiid taken personal security from the vendee, and after- ward assigns one of the notes exe- cuted for the purchase-money, the assignee of such note could not maintain a bill to subject the land to the vendor's equitable lien ; the only way to subject the land to the debt would be by bill to compel the vendee to a specific perform- ance of his contract. Burke v. Qhray, 6 How. 527 ; sed aliter, it may be done and the land subject- ed by the assignee to the payment of the debt. DoUahite v. Orne, 2 S. & M. 590 ; Tamer v. Hicks, 4 S. & M. 294. 270. Where the interest of the vendee of real estate, who has tak- en a bond for title and has paid the purchase-money, is sold under ex- ecution, the purchaser must come into a court of equity to enforce- his right ; as he has not the legal title he cannot maintain ejectment. Thompsonv. Wheatly,5S.&. M.499. aa. Receiver. 271. See Appeal, 23, 24 ; the defendant may appeal from the ap- pointment of a receiver, but the appeal will not suspend the decree unliess the appeal bond is approved by the chancellor. 272. The general rules which regulate the appointment of a re- ceiver are, 1. That the plaiijliff must shew either that he has a clear right in the property itself j or that he has some lien upon it ; or that the property constituted a special fund to which he has a right to resort for the satisfaction of his claint : and 2. That the possession of the property by the defendant was obtained by fraud ; or that the property itself, or the income aris- ing from' it, is in danger of loss from the neglect, waste, miscon- duct or insolveiwyof the defend- ant : 3. Where notice is possible it must be given. Mays- v. Rose, Freem. Ch. 703. 273. Where a purchaser of real estate at sheriff's sale filed his bill in equity to set aside a fraudulent deed made by the judgment debtor, and it appeared that the rents and profits of the .property were in dan- ger of being lost by the fraud and insolvency of the party in posses- sion ; held, that a court of chance- ' ry would appoint a receiver to take charge of the property, lb. bb. Rehearing. 274. On appeal from chancel- lor's decree to the supreme court, newly discovered evidence cannot* be admitted? nor can the refusal of the chancellor to grant a re- hearing be reviewed upon appeal ; but the chancellor should grant it upon the application of two counsel. Hoggatlv. Hunt, Walk. 216, CHANCERY. 139 275. A rehearifig will be granted, as a general rule, when the party applying has complied strictly with the rules of the court in procuring the certificate of two respectable counsel in support of it, but not otherwise. Cotton v. Parker, 1 S. & M. Ch. 125. cc. Relief. 276. If a party have ground of relief and his bill exhibit it, even though he may have mistaken the relief he asks for, yet if the other party have answered fully on the merits, the court will grant him such relief as he shows himself en- titled to. Gildart v. Starke, 1 How. 450. 277. Relief will riot be granted, even on pro con/es«o,. against part of the defendants, whei'e it appears -from the bill and answers of other defendants, that the complainant is not entitled to it.. Minor v. Stewart, 2 How. 912 ; Russelt v. Mqftt, 6 How. 303. 278. Where a complainant prays for a particular relief, and for other and further relief, he can have no relief inconsistent with the specific relief asked, even though there may be just foundation for it in the bill ; in such case the prayer for other relief must be in the ddsjimctive. Pleasants v. Glasscock, 1 S. & M. Ch. 17. dd. Revivor. 279. Where a defendant in a judgment at law files a bill for an injunction, upon his death the bill cannot be revived in favor of his administrator ad colligendum. Ir- min V. Roach, Walk. 386. 280. Decrees in chancery may be revived by scire facias. Mc- Coy V. Nichols, 4 How. 31. 281. Where the demurrer to a bill is overruled and the defendant allowed ninety days in which to answer, and the complainant dies before the next term of the court, and the bill is revived at that term in favor of the administrator of the complainant ; and on the same day of the revival, the defendant having failed to answer, the bill is taken for confessed against him, and a de- cree entered accordingly, it will be error; the defendant should, have been allow-ed some day for the pur- pose of answering the bill of re- vivor. Upshaw V. Hargrove, 6 S. & M. 286. ee. Rules of Covrt. 282. The interpretation of the chancellorof the rules of his court are a safe precedent for the high court of errors £(,nd appeals, and where, notwithstanding a rule of practice, that no motion to dissolve an injunction, on the face of the bill, would be received, yet, if the chancellor entertain such motion it will be considered that the chan- cellor thought the rule inapplicable to the case ; and it seems that such a rule ought not to apply to a case where no decree could be made if the facts were admitted. Walker V. Gilbert, 7 S. & M. 456. ff. Sale by Commissioner. 283. A sale by a commissioner under a decree to foreclose a mort- gage, is incomplete, and maybe set aside before confirmation ; but such a sale may be confirmed by the act of the parties, as well as by the order of the court ; and it will be a confirmation if the complain- ant accept the sale bond for the purchase-money, and issue execu- tions on it after it has ripened into judgment. Tooley v. Gridley, 3 S. & M. 493. 140 CHANCERY, 284. Where a decree of fore- closure ordered a sale, on a credit of six months, there being no law authorizing a sale on such credit, and the sale took place, and was acq-qiesced in by the complainant, whO' accepted the sale bond, and issued executions on it ; held, that it was too late for the complainant to abject that the decree was ille- gal, lb. 285. Whether, where a sale is made on a credit under a decree of foreclosure, a lien, similar to the vendor's lien, is not retained by the court, as ultimate security, without an express reservation in the decree to that effect, qucsre ? If such lien exist it might be enforced in a different court from that which rendered the decree, ij. 286. A decree, ordering a sale of mortgaged pnemises, which di- rects the commissioner to sell the property, make the deed, and- pay the complainant what is due to him; is informal, it should be inter- locutory, and should require a report to the court of the sale, for its con- firmation, lb. 287. In judicial sales of personal property, as by the commissioner of the chancery court in the sale of mortgaged property, the right pass- es by the delivery, and the purchase and ownership may be proved by parol ; the absence, therefore, of a perfect bill of sale from the com- missioner, will not affect the va- lidity of the sale, or stop an execu- tion on the sale bond for the pur- chase-money. Conger v. Robinson, 4 S. & M. 210 ; Robertson v. Haun, Freem. Ch. 265. 288. The mortgage, decree of sale, and the report thereof, on a bill to foreclose a mortgage, are all to be taken together, as parts of an entire thing ; and if the decree follow the mortgage, in the descrip- tion, and the report certifies that the decree was executed by a sale of the pToperty therein described, the report is sufficiently certain as to the property sold, though it be not described in it ; nor will the omission of the commissioner to state, in his report of the sale, the name of the purchaser, or the amount of his bid, though it make the report defective, be such a de- fect as will prevent the issuance of an execution on the sale bond. lb, 4S. & M. 210. 289. And though it is necessary that every such sale should be con' firmed by the chancellor, before it is valid, yet, if the purchaser there- at, before an actual confirmation of the sale by the court, move to su- persede aij execution which has issued against him on the sale bond, and the chancellor refuse to grant the supersedeas, the .refusal will be equivalent to a direct confirmation of the sale. lb. 290. If the purchaser of slaves, at a sale by a commissioner in chancery, hold the same slaves de- creed to be sold, it is immaterial what name may be' given them in the commissioner's bill of sale, and whether those names differ JFrom the names in the decree, lb. 291. In sales made by order of the chancery court, the court itself is the vendor, and the commissioner its mere agent ; the whole proceed- ing, from the sale to its ratification, is under the control of the court, and even after confirmation, if any fraud, error. Or mistake, have inter- vened, injuriously affecting the inr terest of the parties, the court will, on motion of the purchaser, remedy the evil by a supersedeas, against the collection of the sale bond, or ordering a re-sale, if necessary ; and CHANCERY. 141 this may be done on mere petition, and the party not be driven to a bill. Robertson v. Haun, Freem. Ch. 265. 292. A commissioner in chan- cery, to effect a sale' by order of court, has no authority or power to substitute one'purchaser for another, without the entire assent of the first purchaser. Vannerson v. Cord, 1 S. & M. Cb. 345. 293. Where a commissioner makes a sale of mortgaged proper- ty, and the purchaser fails to com- ply with the precedent requirements of the decree, the commissioner has no authority to receive a bond from another person, for the amount of the purchaser's bid ; but the prop- erty remains in his hand, as if no sale had taken place. lb. 294. A commissioner,. having ad- vertised the property for sale, upon a failure from any CE^use to sell on the appointed day, has power, un- less his authority is restricted by the decree, on its face, or limited to a single specified time, to adver- tise the property for sale, again and again, until he effectuate the object of his appointment. lb. 295. The powers of a commis- sioner, to- sell property by decree of the chancery court, are precisely the same that a sheriff has, when a writ oi fieri facias is placed in his hands. lb. 296. A sale of mortgaged prem- ises by a commissioner, is a sale by the court, and is not complete, or title passed thereby, until a report thereof is made to the court, and that report confirmed ; in case of any error in the proceedings in a commissioner's sale the court will, even afte?- confirmation of the re- port, set aside the confirmation, and rectify the evil ; and, if neces- sary, upon petition, order a re- sale. Tooley v. Kane, 1 S. & M. Ch. 518. gg. Specific Performance. 297. A court of chancery will not enforce the execution of a con- tract for the sale of a house and lot where only half the house and ground, can be obtained. Terrell V. Farrar, Walk. 417. 298. A court of chancery will not enforce the performance of promises made from benevolent feelings, without consideration. Mercer v. Stark, Walk. 451. 299. Where an agreement in parol between an intestate and the defendants is set up in a bill, by which agreement the complainants, .the administrators of the intestate, claim title to the personal property in controversy, they must establish such agreement by^lear and posi- tive testimony, or it will not be en- forced ; as where a married woman being a distributee of her first hus- band's estate agreed with the bro- ther of her. husband, whose estate was much embarrassed, that if he would administer on the estate and carry it through its embarrassments she would relinquish to him her distributive share in it, and he had administered, and she had not relin- quished her distributive share, and it did not appear that he in his life-time claimed a right to it under that agreement ; a court of equity, at the instance of his administrators, would not decree a specific per- formance of it. Montgomery v. Norris, 1 How. 499. 300. P. filed a bill for the spe- cific performance of a contract by which M. agreed to convey four lots to him on payment of a cer- tain sum down and the residue in instalments, and averred the ten- der of the sum due in cash and (if 142 CHANCERY. the notes for the residue, but .that M. refused to make the deed on the ground that he had no title to one of the lots, but was filling to con- vey, the others ; held, that P. was entitled to relief on the bill against M. Mathews v. Patterson, 2 How. 729. 301. Where two parties agree in writing to the sale and exchange of land, on terms to be agreed on and established by arbitrators ; and the arbitrators proceed to make their award in the mode agreed on, a court of chancery will decree a specific performance of such award. Cook V. Vick, 2 How. 882. 302. A court of equity will cor- rect a mistake in the description of lands conveyed by a deed. Leon- ard V. Austin, 2 How. 888. 303. Where property was sold under a deed of trust and bought by A. for $3600,' who paid $800 in cash, was to pay $400 more the next day, and the residue was to be paid in one and two yeaYs, for which his notes were to be given, and A. being put into possession of the prbperty, refused to pay the money or execute his notes ; the trustee not having rnade A. a deed, after waiting nearly two years, sold the property a second time, under the deed of trust, to B., and made him a deed. B. sued A. in ejectment ; whereupon A. filed a bill for a spe- cific performance of the first con- tract of sale, averring his readiness to pay the money due but not ten- dering it in court ; held, that A. 'a laches excluded him from the re- lief he asked and a specific per- formance was refused, Lewis v. Woods, 4 How. 86. 304. M. agreed to convey cer- tain lands to R., who executed his note for an agreed sum as the price ; M. failed to convey the lands and R. filed a bill for a specific per- formance of the contract, averring that since the contract he had un- dersljood that one P. was joint own- er with M. of the lands ; and that he had also understood that M- had conveyed his half by deed to P. : that if such an arrangement had been made it was by collusion be- tween P. & M. to defraud R. ; that when M. sold- to R. he had author- ity from him to sell ; the bill called for a discovery as to what title M. and P. each had, what considera- tion passed from P. to M, and what money was paid and how secured, M. answered that the land was en- tered in the name of P. & M. with the money of P., who was to have a lien on the part of M. until the money and interest were paid ; that M., when he sold to R., sold.sub- ject to P.'s ratification,, who refused to confirm it, .whereupon M. ofiered R, his half at the same rate R, had agreed to buy the whole at, which R, refused, and that M,, being una- ble to pay P,, had conveyed his half to him instead of the money j the bill was taken for confessed as to P, ; held, that the answer of M, was responsive to the bill and evi- dence, and that R. could have no relief as against either M, or P. Russell V, Mnjflt, 6 How, 303. 305. The payment of part of the ; purchase-money will not of itself take a case out of the statute- of frauds, so as to entitle a vendee to a specific performance of the con- tract ; and if the vendor rely on possession he must establish a direct connection between the contract and the possession of the vendee. Hood V. Bowman, Freem. Gh, 290, hh. Time, Effect of in Equity. 306, Time is not of the essence of a contract in equity, and though Qontracts mutual and dependent are CHICKASAWS AND CHICKASAW TREATY. 143 enforced at law, equity will grant relief by extending the time ; as where R. advanced money to J. to buy a tract of land on condition that the title to the land should be made to E. as a security for his re- payment, and with the agreement that J., on payment of the money by a stipulated time, should have the title conveyed to him ; the pur- chase being ,made, J.'s failure to pay the money at the fixed time will not deprive him of the land, R. will be decreed a trustee for J., and on payment of the money a con- veyance of the land will be decreed. Runnels v. Jackson, 1 How. 358. 307. Time is never important in equity unless made so by the very terms of the contract, or is neces- sarily so from the very nature of the property, about which the con- tract is made. Fletcher v. Wilson, 1 S. & M. 376. CHICKASAWS AND CHICKA- SAW TREATY. .1. The treaty between the Unit- ed States and the Chickasaws, which provided that any white man who brought and sold goods in the nation contrary to the treaty, &c.,' should forfeit them, was npt violated by bringing the goods into the nation merely ; to justify their seizure as forfeited goods, there must have been an actual sale ; a plea there- fore to an action of trespass for seiz- ing such goods, which averred an offer to sell, but not a sale, would be bad and no justification. Mingo v. Goodman, 1 How. 552. 2. Where by the laws of the Chickasaw tribe, the husband ac- quired no right to the property of his wife, and while those laws were operative the wife of a Chickasaw conveyed a slave by deed of gift, to her daughter, and afterwards the laws of Mississippi were extended over that tribe, the slave thus given to the daughter would not become subject to the debts of her father ; the rights of the mother to her sepa- rate property would not be affected, nor her power to control it, by a subsequent law. Fisher v. Allen, 2 How. 611. 3. Where, by the 6th article of the treaty with the Chickasaws, it was provided " that reservations of a section to each shall be granted to persons, male and female, not being heads of families, who were of the age of twenty one years and upwards, a list of whom, within a reasonable time shall be made out by the seven persons there- in before" mentioned, and filed with the agent, upon whose certifi- cate of its believed accuracy the register and receiver shall cause said reservations to, be located upon lands fit for cultivation, but not to interfere with the settlement rights of others ; " it was held, that a ti- tle in fee, passed to such Indians as were above the age of twenty-one, as fully as though a grant had been executed, not perfected however, until a location was made, which was necessary to give identity. The Indians thus clothed with per- fect title by location could only part with it in the mode pointed out in the treaty ; which was that at least two out of the seven persons named must certify that the Indian was capable of taking care of his affairs ; that the agent must certify to the same thing, and also that a fair consideration had been paid, and that the deed of conveyance was to be approved by the Presi- dent of the United States or his agentj and to be recorded accord- 144 CHOSE IN ACTION. — CIRCUIT COUET. ing to the laws of the state where the land was situate ; but if an In- dian make the deed, it will clothe the vendee with an equitable title, to be perfected by the after procure- ment of the jrequisite' certificates, and if the vendee be prevented from procuring them by the fraud of a third party, who by substitut- ing a different Indian for the one en- titled to the reservation, gets a deed from such false Indian, and pro- cures by this fraud the requisite certificates, and has the deed ap- proved and recorded, a court of equity will protect the purchaser from the real Indian who is in pos- session, from the fraudulent vendee of the false Indian, and will restrain such fraudulent vendee from pro- ceeding by action to dispossess the vendee of the real Indian ; and a court of equity vi^ill remove the im- pediments interposed to the title of the vendee of the real Indian, by the fraud of the other. Niles v. Anderson, 5 How. 365.t Ander- son V. Lewis, Freem. Ch. 178^ 4. The agents under the treaty to make the requisite certificates to enable Indians to pass a perfect title, are but ministerial and not judicial officers ; but if they were the lat- ter, their acts, if procured by fraud, would be set aside. lb. CHOSE IN ACTION. 1. See Assignor and Assignee, 1 and 2, as to the' rights of the as- signee of an open account. De- frame v. Davis, Walk. 69. 2. Instruments payable to C. D., curator of the estate of E. D., de- ceased, or to the legal representa- tives of said estate, are choses in action. Gushing v. Gibson, Walk. 87. 3. See Tenant in Common, 2. Slaves limited by deed, chose in action, and not reduced to posses- sion do not survive to husband. 4. See Bills of Exchange and Promissory Notes, 14; Chose in action not subject to lien of a judg- ment. 5. See Husband and Wife, 8, 21, 23, 24 ; for what are choses in action of wife, who must sue for, a(id when reduced to possession. 6. See Assignor and Assignee, as to the right of the- Eissignee of a judgment to sue thereon in his own name. CIRCUIT COURT. 1. By the constitution of this state of 1833, the old county courts were abolished, and jurisdiction was given to the circuit courts for the trial of slaves. Byrd v. Si.ate, 1 How. 247. 2. Where the venue is changed in a criminal case, the- clerk of the court need only send the papers properly belonging to the record ; the original venire is not part of the record, unless by bill of excep- tions on a writ of error ; and after a change of venue, objections to the original venire of the grand jury will not be inquired into where no bill of exceptions was taken to it. lb. 3. Special terms of the circuit court being regulated by law, the recital in the record and indiet- fnent, that the latter was found at the special term, will be sufficient, lb. 4. On appeal from justice of the peace, circuit court has no other jurisdiction than justice had. GIms V. Moss, 1 How. 519. 5. Circuit court has power to dis- miss certiorari improperly awarded. Leech v. Irieing, 2 How. 887. CmCUIT COURT. 145 €. Where, on the filing a decla- ration, in Warren county, against several defendants, process issued for, all to the sheriff of Warren, and also a similat process for all to Hinds county, and the latter writ was returned served on all, and the former not found as to all, and the defendants appeared and filed an affidavit that they were all at the time of the institution of the suit, resident citizens of Hinds county ; held, that the circuit court of War- ren would have no jurisdiction of the case, and it should be dismissed. Bank of Vicksburg v. Jennings, 5 How. 425. Aliter, however, if one of the defendants had lived in Warren county, in which event, if the other defendants had not plead, the plaintiff might discontinue as to the defendant in Warren, and take judgment by default against the others, ^ead v. Renaud, 6 S. & M. 79. 7. The question of the necessity and propriety of directing a special term of the circuit court, is a mat- ter entirely within the discretion of the judge ; no formal order is ne- cessary by the statute ; the twenty days notice by advertisement, re- quired by tlie statute, is for the in- formation of the public, but is not necessary to confer jurisdiction ; the statute is merely directory in that particular. Friar v. State, 3 How. 422. (Since this decision the law has .been changed ; a special term can only be granted where the regular term fails.) 8. See Practice, 37. What suits not triable at specialterm. 9. See Office, 1 and 2. For tenure of office of circuit judge. 10. The constitution of the state limits the jurisdiction of justices of the peace to cases where the prin- cipal in controversy does not^ceed 13 • fifty dollars ; that of the circuit court to cases where more than fif- ty dollars is involved ; it provides also for the right of appeal from the decision pf the justices' court, with- out saying to what cpurt the appeal should be taken : Held, that the legislature had the right to author- ize the appeal to be taken to the circuit court ; a writ of certiorari is but a mode of appeal, and the circuit court will therefore have ju- risdiction of a case under fifty dol- lars brought by certiorari from a justices' court ; nor will the provi- sion of the statute, that the trial is to|be had de novo, affect the. appel- late character of the case in the circuit court. Hurd v. Germany, 7 How. 675 ; Hurd v. Tombes, 7 How. 229 ; Porter v. Deterty, 1 S. & M. 163. After a case is thus removed into the circuit court, and a declaration is filed therein, and the pleadings made up, it is too late to rhove to dismiss the certio- rari ; that is only the writ which brings up the case, and errors in it are cured by appearance and plea. Fitzpatrick v. Ray, 4 S. & M. 645. 11. The circuit court has full jurisdiction to foreclose a mortgage without regard to amount, and has power therefore to do all things re- quisite for that purpose ; nor can its decree be revised by the supe- rior court of chancery. Tooley v. Gridley, 3. S. & M. 493. Same case, 1 S. & M. Ch. 518. 12. See Slaves, 37. Has juris- diction of a certiorari from judg- ment of the justice, awarding costs against the owner of a slave con- victed of larceny. 13. See Probate Court, 34. Circuit court cannot render judg- ment on an issue from the probate court ; and if it does it is a nullity. 146 CLERKS OF CIRCUIT COURT. 14. The statutes regulating pro- ceecjjngs in chancery, are to be a,p^ pUed to similar proceedings in the ciijcuit courts ; final decrees, there- fore, may be entered at the same term that a bill is taken for con- fessed, such course being author- ized by the statute, in regard to the chancery court. Sanders v. DoW'' ell, 7 S. & M. 206. 15. "Whether the rules of the chanceiy court, adopted by the chancellor, are applicable to equity causes in the circuit court .'' Q^fere 1 lb. 16. There is no rule of the cir- cuit court, requiring the coronus- siojier, to whom a mortgage bilf is referred, to state an account due ijppn the mortgage, to give notice to the opposite party of the time and place of taking it ; yet, if the defendant object to a conficmation of the leport for want of notice, and at the same time show any gqod cause for its recommitment, the: report should be recommitted ; but i£ he permit lie report to be confirmed without objection, he will -be held to have waived all ob- jection to it. lb. 17. K" it should become necessa- ry to file an original bill to enforce a decree for tlie fiDrecIosure of a mortgage rendered by the circuit court, that court would have juris- diction to entertain such a bill as an incident to its power to decree the foreclosure. Toohy, v. Kane, 1 S. & M. Ch. 518. CLERKS OF CIRCUIT COURT. 1. The official duties of a clerk of the circuit court, embrace every act that the law requires him to perform in virtue of his office ; the issuance theuefore of a writ of er- ror, is an official act, and so is .his takipg bond, with two or more suf- ficient sureties, upon the issuance of such writ ; and the clerk wijl be liable on his official bond, if hp is- sue a writ of erroi; with superse- deas, without taking from the de- fendant in the judgment, bond con- ditioned according to law, with two or more sufficient sureties ; in such case, the bond may be sued on by any person injured, and recovery be had to the amount of the penally thereof. McNutt, Gov. v. Lifoingi ston, 7 S. & M. 641. 2. Whether the law makes the clerk of a circuit cpurt guarantee the sufficiency of the sureties on a bond taken by him, upon the issu- ance of a writ of error and' superse- deas ? Qumre ? lb. 3. The granting of a writ of er- ror by the clerk of a circuit cpu?t, in pursuance of the statute, H. & H. 541, is a ministerial, not a judi- cial act. lb. 4. By law, the clerk of th^ cir-i cuit court may appoint deputies, but the deputy is responsible to, the clerk alone ; and the clerk to par- ties who may be injured by the acts of the deputy, as the acts of the deputy are 1he acts of the prinei'' pal. lb. 5. In an action against the clerk of the circuit court, and his sureties on his official bond for tie ^ilire of the clerk to take a bond with two or more sufficient sureties, up- on the issuance by him of a writ of error and a supersedeas, it is no an' swer to the sufficiency of the de- claration, to say that the erroneous conclusion of the clerk, in regard to the sufficiency of the, .sureties, is no breach of his bond ; nor, in de- ciding upon the sufficiency of the declaration, is the fact that the sherifiUiad made a sufficient levy, COLLATERAL SECURITY. 147 which was hot discharged by the supersedeas, a proper subject of inquiry. lb. CLERKS OF PROBATE COURT. 1. See Coiislitution of State, 2. Can be removed only in the mode • pointed out by the constitution. Runnels v. Slate, Walk. 146. 2. See County Court, 4, as to certificate to records of county court. CLERK OF SUPERIOR COURT OF CHANCERY. See Office, 3, 4, 5 ; for term and duration of office, and power to remove from, before expiration of term. COLLATERAL SECURITY. 1. A creditor who takes collat- eral security for his debt, is bound to hold it ilnpartially and justly ; and if it be lost by his negligence or improper conduct, the surety on such debt may bar the creditor of so much of hie demand, as he might have received froin such collateral.- Payne v. Commercial ' Bank of Natchez, 6 S. & M. 24. 2. L. being indebted to a bank on sundry notes as maker or in- dorser, on some of which notes other persons were bound as siire- ties for him, proposed an arrange- ment to the bank for their adjust- ment by the substitution of "his in- dividual separate note fqr the sum total, to be securadby .sonfessipn of judgment to bind' hi§^ property in Louisiana, to whi&kivptaposal tlje bank acceded ; to be complete wlien proper evidence of its consum- mation was given to the bank ; previous to this proposal, L. hid deposited with the bank two hun- dred shares of bank stock as col- lateral security for the payment of these notes ; L. having first sold his property in Louisiana, executed his note and confessed the jiidgment in favor of the bank, without notify- ing the bank, or the bank's ratify- ing it ; execution issued on this judgment, and the sheriff, to whose hands it came in Louisiana, sold the bank stock for $2200 to B., and gave B. an order on' the bank f«(r the stock, which delivered it to B. ; the bank never received the pW- ceeds of the sale of the bank stock, nor did it appear what had becotne' of them : Held, in a suit by the bank on the original notes, thai the parties to them Were not entitled to a credit thereon for the amount of said stock, as the security of the Stock had not been lost ; for if the sheriff's sale changed tl**title', its proceeds would be within their reach ; and if the sale had not changed the title, the stock Would be subject to their order, lb. 3. See Mortgage, 2S ; mortgage is not discharged by mortgagee taking other collateral security whicli proves worthless. 4. A -party who receives from his debtoT the note of a third person, as collateral Security for his own 'debt, is bound to use due diligence in collecting it, and if it is lost by any delay of his, he becomes re- sponsible for the amount ; a mere 'idelay to prosecute the collection, Utiasccompaftlei by con-sequent loss, will not rende* th^reditor respon- sible ; nor' will the ^stay of execu- tion for six months by a citedit^:|^on a judgmeiit' reeiorded on Gollateical 148 COMITY.— COMMON CARRIERS. paper, unless it prove the occasion of the loss of the debt, render the creditor responsible for the amount of the collateral paper. Steger v. Bush, 1 S. & M. Ch. 172. COMITY. 1 . See Contract, 10, as, to effect given to contracts and statutes made in another state. 2. See Dower, 3, as to whether allotted according to law of domicil. 3. In an action of debt on a judgment recovered in the state of South Carolina, plea of a discharge from the debt under an insolvent law of that state, while both plain- tiff and defendant were citizens of it, will be a bar to the action. Wil- liams V. Guignard, 2 How. 722. 4. . See Appearance, 2. A judg- ment rendered in Alabama, on the recital, " this day came the parties, &c.," under the decision, in that state, is good, and by comity may be eiffiirced here. 5. The law of comity, except in cases of contracts, does not extend the laws of one state beyond the jurisdiction of that state. Nations V. Alvis, 5 S. & M. 338. 6. See Bills of Exchange and Promissory Notes, 184 ; whether order payable to bearer made in Al- abama, where law prohibits a suit by the bearer, can be sued in this State by bearer ? commit a witness who refuses, when subpoenaed to appear and testify be- fore them, but only to report his de- fault to the court, such commit- ment would be illegal, and all par- ties engaged in making or abetting in it would be trespassers, and liable to an action for false imprisonment, by the aggrieved party. Marsh v. Williams, I How. 132. 2. See Chancery, tit. Account, and Sale by Commissioner. COMMISSIONERS IN CHAN- CERY. 1. Commissioners in chancery have no other powers than those delegated to them by the statute whkh defines their duties ; and that statute not giving them power to COMMISSIONERS OF THE SINKING FUND. By the charter of the Planters Bank of the State of Mississippi, it was provided that the surplus of the semi-annual dividends on the stock of the state, after paying the in- terest on the bonds of the state sold for stock, should " constitute a sinking fund under the manage- ment of the auditor, and the pres- ident and cashier of said bank, for the redemption of said bonds;" held, that these three persons were thereby constituted trustees of the fund thus established ; and were authorized to loan the fund at inter- est, and, having made loans, could sue at law on any contract within the scope of their powers ; and in such suit they must aver that they are commissioners of the sinking fund and are incumbents of the offices, the incumbents of which, the law constitutes such commissioners. ' Commissioners of the Sinking Fund V. Walker, 6 How. 143 ; Montgom- ery V. Commissioners of Sinking Fund, 7 How. 13. COMMON CARRIERS. I . The owners of steamboats en- COMMON CARRIERS. — COMMONS. 149 gaged in the carryihg trade are common carriers, and liable as such ; they are insurers against all losses not within the exceptions of law or which are not excepted by special contract ; they may obviate the ri- gor of the law by inserting the pro- per iexceptions in the bill of lading. Gilmore v. Carman, 1 S. & M. 279. 2. A loss occasioned by acci- dental fire, not arising from negli- gence or carelessness, is not within the exception of a loss caused by " act of God ;" nor is fire one of the " dangers of the river," and will not therefore be embraced in a bill of lading by these words : "the dan- gers of the river only excepted." lb. 3. The words " inevitable acci- dent," when used in law to desig- nate the mode by which a loss has happened or may happeii to a com- mon carrier, are synonymous with the phrase " the act of God." Neal V. Sdunderson, 2 S. & M. 572. 4. In an action against a common carrier he offered to introduce wit- nesses to prove that the loss had been occasioned by " inevitable ac- cident," which the court below re- fused to admit ; held, that the proof should have been allowed. lb. 5. Where a common carrier re- ceives goods and givtes a bill of lad- ing without excepting " the dangers of the river," his contract is not ab- solute to deliver the goods at all events, but is subject to losses oc- casioned by act of God or the king's enemies, lb. COMMON LAW. 1. How far the common law adopted and in force in this state, and how far the English statutes prevail here, iiftirectly considered in the cases of Byrd v. State, 1 13* How. 163, and Shaffer v. State, 1 How. 238. 2. It seems that ilone of the En- glish statutes are in force in this state, as part of the common law. Wheelock V. Cozzens, 6 How. 279. 3. The common law, a? a por- tion of- the law of the land, is re- cognized by the constitution of this state ; bi^is subject to be altered or repealed at the will of the legis- lature. Noondn v. The State, 1 S. & M. 562. 4. It seems that the English stat- utes as far back as the 32 Hen. VIII. are not in force in this state. Sessions y. Reynolds,! S. & M. 130. COMMONS. 1. A dedication of a piece of land to the public, as commons, need not be by deed or writing. Vick V. The City of Vicksburg, I How. 379. 2. To constitute a good dedica- tion and right to easement in land> there must be some party benefi- cially interested in it, besides the grantor ; it is like any other con- tract, though not so strictly con- strued ; there iieed not necessarily be a person to hold the legal title ; the dedication will be upheld in favor of the equitable or beneficial claimant ; yet there must be such claimant, to constitute a Valid dedi- cation. Ih. 3. The rule, with referelice to dedications of urban property, Re- ducible from the authorities, is, " that, where the owners have laid it out into lots, with streets and avenues intersectiiig the same, and have sold lots with reference to such plat, it is too late for them to resume a general and unlimited control over the property thus ded- 150 COMMONS. icated to the public." The acts of the proprietor of such city property by which a dedication may be es- tablished, must be, either in them- selves or from the relation of the parties, of an open, palpable, de- liberate, and public character. The testimony to establish a dedication by implication, as by asserit and user, sale at increased ^ue, &c., must be of the same open and ex- plicit kind, and absolutely inconsis- tent, according to the rules of law and the obligations of good faith, with any other supposition. lb. 4. Where the owner of a tract of land, which was at the time in part a dilapidated and abandoned cotton field, and in part a wild and unsubdued forest, conceived the idea of laying it out into lots, and making it the site of a future city, his intentions, and' declarations of his intentions and designs, made to private individuals, and his offer to sell to one witness, and his refusal to sell certain lots to another, while he was engaged in making a sur- vey of the premises ; and his draft- ing of plats of the intended town, will not, if he die before his plans are completed, and the town for- mally and fully laid off, and while the whole matter is subject to be altered, modified, and changed at his pleasure, constitute a dedication to the public of an easement in any portion of the property, the subject of these speculations, lb. 5. Nor would the fact that the proprietor of such inchoate town, who died before completing his plans, sold one lot, at an advanced price, and in- the deed described it as " lying, and being in the plat of the town of V., on the Mississippi river, near the mouth of Glass's bayou ; being the corner of Water and Centre streets," constitute a dedication of an easement to the public in the proposed town ; there being in fact no persons in interest but .the grantor and grantee, the town not yet laid out, no plat an- swering fully the description as to streets called for in the deed ; the place a solitude ; the grantee fully aware of the condition of things ; the alleged streets not yet opened, and the whole property unoccupied ; in such case, such grantee would have a mere right of way ; a rural, not an urban servitude; and it would be limited to him ; and he might, by his deed to the grantor, recon- vey and redeliver such right to him. 6. Where the testator directed a certain portion of his real estate to be laid off into town lots, at the dis- cretion of his executrix and execu- tors ; and before they had all re- signed their office, and without hav- ing laid off the town, a person claim- ing to be the administrator, with the will annexed, but not legally so appointed, will have no power to lay out such town ; and if he do so his acts will be illegal and void, and any dedication to the public made by him, irregular and inope- rative, lb. 1. The void acts- of a stranger, in dedicating to the public the prop- erty of minors, are incapable of any recognition which could give them validity as against the owners, ex- cept such as would amount to a re- lease on their part, or an original conveyance of the property.; and where such minors, as soon as they have come of age, have asserted, through the courts, their rights, the fact that in deed executed by them they have referred to the boundaries and names given to such pretended dedicati(Jhs, will not affect their right. lb. CONDITIONS. — CONSIDEEATION. 151 CONDITIONS. 1. The non-performance of, can only be taken advantage of, by grantor and his heirs. See Span- ish Laws, 5, 6, 7, 8. Winn v. Cole, Walk. 119. 2. See Contract, 11 and 58, as to performance of conditions prece- dent. 3. See Grant. The non-perform- ance of conditions subsequent de- feats grant, and the land reverts to the grantor. CONSIDERATION. 1. Where the contract is by deed, the consideration need not be set forth. The law implies one, if none be stated. Minor v. Michie, Walk. 24. 2. A consideration is also im- plied upon bills of exchange and promissory notes ; in all other cases, not being implied, must be stated in the declaration, lb. 3. A writing, in these words, " Due D. M. nine hundred and ninety-one pounds clean cotton, on demand," is neither a deed, bill of exchange,.nor promissory note, and it is necessary, in declaring upon it, to state a consideration, the omis- sion to do which is fatal, and not cured by verdict, lb. 4. How far failure of, can be taken advantage of, at law and in equity, and whether a different con- sideration from that contained in the deed can be established by parol. See Evidence, 7,-8, and 9. Kerr V. Calvit, Walk. 115. 5. Where the consideration, on which an instrument is given, is expressed, no other and different consideration can be alleged and prpved. Hughes v. Daniel, Walk. 488. 6. See Bills of Exchange and Promissory Notes, 20 ; considera- tion must not be merely beneficifil or prejudicial to one party or the other, but legal also. 7. The acknowledgment that ar- ticles had been furnished S. as ex- ecutor, to finish a house which he, as executor, was finishing, is sufficient proof of consideration, to hold S. individually liable. Sims v. Still- well, 3 How. 176. 8. See Deed, 12 ; sufficient con- sideration, payment to third party. 9. See Contract, 32 ; defejice may be made to new note, of fail- ure of consideration which existed to old note. 10. Forbearance is a good con- sideration to a release of error. Barnes v. Moody, 5 How. 636. 11. Where a contract, or instru- ment, does not of itself import a consideration, the one on which it is founded must be averred in the pleadings. Willis v. Ives, 1 S. & M. 307. 12. Correspondence in dates and amount, between a note and certifi- cate of stock, is evidence that one was the consideration of the other. Barringer v. Nesiit, 1 S. & M. 22. 13. See Bills of Exchange and Promissory Notes, 119 ; where ex- cess of power exercised in filling up blank note, constitutes failure of consideration. 14. See Fraud, 1^ for a case where the fraud of the vendor caused a failure of consideration. 15. See Contract, 41 ; a work- man who does not do his work in a workmanlike manner, cannot re- cover for it. 16. See Fraud, 21, 22; fraud may be proved at law, and consti- tute failure of consideration. 17. The assignment of a bond 152 CONSIDERATION. conditioned to make title to land, the obligor having a good title, will be a Sufficient consideration for a note or bill single. Montgomery V. Dillingham, 3 S. 65 M. 647. 18. See Surety, 10 ; a mere vol- nntaty promise to give time is a nudke pact. 19. Where forbearance to sue is the consideration of the contract, the suit should be brought on that con- sideration, and not the original in- debtedness. Montgomery v. Bil- mgham, 3 S. & M. 647. 3d. See Fraud, 37 ; considera- tion of promise to t)ay the debt of a third person, need not be in writ- ing. 21. C. sold P. a tract of land, and Covenanted in the deed, that if title to part of it failed, he would make a corresponding deduction from the purchase-money, and gaye also a covenant of warranty ; lield, that in an action to recover the pur- ehase-money, P. could set up a failure of consideration as to the land fo which the title was not per- fected ; and where P., before suit Was brought against him for the purchase-money, sold the land to G., it was held to be by no means clear that C.'s covenant was a real covenant ; and that if it were it de- pended on the terms of the assign- ment, whether it passed to G. Chaplain v. Briscoe, 6 S. & M. 198. 22. See Personal PropeH^, 14, 15 ; how far unsoundness of article sold, failure of consideration, where no warranty nor deceit. 23. The administrators of a de- ceased person, at the sale of his personalty, proclaimed that the slaves about to be sold were subject to judgment liens, and offered and agreed that in case they should be seized under the judgments, the sale should be considered as void, and the notes of the purchaser be given up ; the slaves accordingly sold for their full value ; in an ac- tion brought by the administrators on a note given for the purchase- money, held, that the maker of the note might show, under the general issue, that the slaves were taken out of his possession, and sold under the judgments, and that the consideration of the note had failed. Buckels V. Cunningkam, 6 S. & M. 358. 24. Money paid upon an illegal consideration cannot be recovered back. Rowan v, Addfns, 1 S. & M. Ch. 45. 25. G. G. bought slaves of K which were introduced into this state, and sold in violation of law ; and to secure the purchase-money executed a deed of trust on land, and afterwards sold the land to C. G., whibh was again sold under the deed of trust by N., at which sale C. G. became the purchaser, and executed his notes to N. for the purchase-money, and gave a deed of trust to secure their payment ; N. attempted to sell undet the deed of trust, and was enjoined by C. G. on the ground that his debt to N. was the assumption of G. G.'s debt by him ; held, that the illegality of the consideration of the notes t>f G. G. did not attach to the notes given by C. G. and that N. was entitled to •sell, under the deed of trust. Gib- son V. Niblett, 1 S. «Se M. Ch. 278. 26. Where A. executed his note to B. in consideration of a covenant by B. to have title to a piece of land made to A. on C.'s coming of age ; and C. on coming of age refused to make title to A. and to .procure C.'s title, A. had to pay a large sum ; held^ in an action on the notes by B.'s assignee against CONSTITUTION OF STATE. 153 A., that A. could not plead failure of consideration of ,the notes ; nor plead the sum he had to pay C. for the title, as an offset. Gridley v. Tucker, Freem. Ch. 209. CONSTITUTION OF STATE. 1. See Jurisdiction, '2 and 3. Law permitting transfer of cases from inferior to supreme court, be- fore final judgment constitutional. Blanchard v. Buckholt, Walk. 64. 2. A legislative act, in violation of constitution, is void, and it is the duty of the judges to declare it so. Runnels v. The Stale, Walk. 146. 3. The act of the legislature, abolishing the office of clerk of the probate court, and directing the judge to discharge the duties of clerk, (there being a clause in the constitution pointing out the mode in which clerks of that court shall be removed,) is unconstitutional. /*. 4. Is an act of the legislature authorizing executors to sell the lands of minors in particular cases constitutional .? Third persons can- not make the objection. Coleman V. Carr, Walk. 258. 5. See Trustees of Poor, 1 ; as to power of legislature to stay exe- cution. 6. See Surety, 5 ; law giving right to surety, to move for money paid by him, is unconstitutional. 7. See Limitations, Statute of, 5 and 6 ; as to ' constitutionality of law repealing limitation act, where right to plead has become vested. 8. To set aside a sheriff's sale on motion is unconstitutional, in de- priving a man of his property not by due course of law. Flournoy v. Smith, 3 How. 62. 9. The charter of the Grand Gulf Railroad and Banking Company, which prescribes the mode of ascer- taining the value of land over which the road was to pass, and provided that the court, when the value was assessed, should convey the land to the company, and give judgment and execution against the com- pany for the amount assessed, in favor of the owner of the land, vio- lates that clause of the constitution which declares that private property shall not be taken for public uses without compensation first made. Thompsons. The Grand Gulf Rail- road Company, 3 How. 240. 10. Where the remedy prescrib- ed by the legislature is unconstitu- tional, the courts can afford no re- lief; the legislature must be looked to. lb. 11. See Slaves, 19 ; for contract for introduction of slaves into the state in violation of constitution. 12. See Attorney at Law, 17 ; not unconstitutional to prohibit bank directors from being attorneys for the bank. 13. See Banks, 4 and 10; for constitutionality of the Mississippi Union Bank charter, and the pledge of the faith of the state. 14. Where portions of a law conflict with the constitution, but the residue is vahd, the latter will be sustained and enforced if it can be separated from the former. Campbell v. The Mississippi Union Bank,. 6 How. 625. 15. Under the constitution of this state, requiring the publication of a law, pledging the faith of the state for the redemption of a loan, and referring it to the next succeed- ing legislature, the whole law need not be published, but only such por- tions as are necessary to make known the objects and purposes of the loan. lb. 154 CONSTITUTION OF UNITED STATES^ 16. See Mechanics' Lien, 2, 3 ; the mechanies' lien law of 1840, is constitutional and cognizable alone in the circuit courts. 17. See Vice- Chancellor, 1 and 2 ; for constitutionality of vice-chan- cery court, and the power of the legislature to authorize an incum- bent to hold over until his successor was qualified. 18. See Criminal Law, 86 ; for constitutionality of gallon law. 19. The common law, though re- cognized by the constitution, may be altered or repealed by the legis- lature. Noonan v. The State, 1 S. & M. 562. 20. See Board of Police, 1 ; act authorizing appeals therefrom con- stitutional. 21. See Slaves, 29 ; act confid- ing trial of slaves, in order to ren- der their masters liable for money stolen by them, to justices of the peace, is unconstitutional. 22. See Banks, 34 and 35 ; que warranto act of 1843, constitutional, ::'.:jf9^ CONSTITUTION OF UNITED STATES. 1. See Criminal Law, 4 ; as to how far the clause that no man shall be put twice in jeopardy of life or limb, is applicable. State v Moor, Walk. 134. 2. The act of the legislature of 1825, authorizing the city of Natch- ez, to levy a tax or duty on steam- boats and other vessels, landing at that port, is not repugnant to the 10th section of the first article of the fejieral constitution. That act does not profess to divest the right of property in the banks of the river, and is not therefore in con- flict with the constitution. 0'' Con- ley v. The City of Natchez, 1 S di M. 31. 3. See Taxes, 1,2; taxes levied on sales of flat boats, are not uncon- stitutional. 4. See' Banks, 26, and 27 ; a bank charter is a contract in the meaning of the constitution; and the act prohibiting banks from assigning their notes does not im- pair its obligation. 5. See Banks 34, 35 ; quo war- ranto, act of 1843, not unconsti- tutional. 6. The statute abolishing im- prisonment for debt, and thereby discharging all obligors in bail- bbnds, by preventing the bail giving up their principals in dis- charge of themselves, is not a violation of the constitution and does not impair the obligatioh of the contract. Brovm v. Dillahunty, 4 S. & M. 713. CONTINUANCE. 1. A refusal to grant a continu- ance, is no ground of error. Bab- c6ck V. Scott, 1 How. 100 ; Beirry V. Hale, 1 How, 316 ; yet it will be error to refuse to hear an ap- plication for one. Marshall v. Fulgham, 4 How. 216 ; Muirhead V. Muirhead, 6 S. & M. 451. 2. See Imparlance Term, 2. Under the law of 1840, each de- fendant, as a matter of rightj is entitled to a continuance until the term ensuing that to which -he is served with process, whether there be more defendants than one or not. 3. Affidavit for a continuance of a cause, where the question of the validity of a marriage is involved, on the ground of the absence of a witness, who could prove that the woman was living previous to the alleged marriage with atoother man CONTRACT. 155 ?ig his wife, is insufficient; it should show that her alleged first hvisband was alive at the time of her inter-marriage with the second. Muirhead. v. Muirhead, 6 S. & M. 451. CONTRACT. 1. See Consideration, 1, 2j 3. Scaled instruments, bills of ex- change and promissory notes im- port considerations ; but a contract to deliver on demand a certain num- ber of bales of cotton requires a consideration to be stated when it is declared on. Minor v. Michie, Walk. 24. 2. In a contract to deliver on demand onerous property, ' if no time or place of delivery be speci- fied, a special demand must be averred and proved to entitle to a recovery for a breach of it. lb. 3. If A. is in possession of a ru- mor, calculated materially to affect the price of any commodity, and purchases . it without previously communicating this rumor to the vendor, the sale is fraudulent and void, both at law and in equity ; fraud being equally cognizable in both. Frdier v. Genais, Walk. 72i Gontra by S. C. of U. S. in Laidlaw v. Organ, 2 Wheat. 178. See Verplanck on Contracts, passim. 4. Parol contract merged in vvritten, and evidence to show di- ferent consideration from that stated in deed, inadmissible. See Evi- dence, 7, 8 and 9i Kerr v. Colvit, Walk. 115. 5. See Real Estate, 4 ; as to re- scission of contract for want of title. Gale V. Green, Walk. 159. 6. See Real Estate, 5 ; as to re- scission of contract on the ground of mutual mistake as to ownership of land, Harrison v. Stowers, Walk. 165. 7. See Chancery, 15 and 16 ; as to rescission of, where grantor in- tended tOr bar rights of his wife by deed to grantee. Dismukes v. Ter- ry, Walk. 197. 8. Mere mistake of law without fraud, is no ground for setting aside a contract. Jennings v. Giison, Walk. 234. 9. See Real Estate, 7 ; for pur- chase of land where vendor no ti- tle, and vendee not evicted. 10. Contracts will be governed by the law of the state where they are made, and the construction giv- en by a sister state to its statute, will be adopted. Sampson v. Breed, Walk. 267. 11. Where there was an entire contract by which A. agreed to de- liver ten slaves by name, to B. at a fixed time, and B. executed his notes payable after the slaves were: to be delivered ; held, that A. could not recover upon the notes until he proved a tender of the ten slaves, a tender of nine with the statement that the tenth had run away, but would be delivered when caught, will not be sufficient. Farrar v. Gaillard, Walk. 269. 12. A promise, upon sufficient consideration, made to one, to pay the debt he may be owing to anoth- er, is sufficient to entitle the party to whom the promise is made to recover of the promisor. Vigni- au V. RvJ^s, Walk. 312. 13. See Chancery, 32 ; as to specific performance where the whole property contracted' for can- not be had. 14. See Husband and Wife, 5 ; as to how far contract by, in this state, will be affected by contract between in Louisiana. 15. An insolvent debtor, may pre- 156 CONTRACT. fer one creditor to another. Mer- rick V. Henderson, Walk. 485. 16. See ' Consideration, 5 ; as to where consideration expressed, - if different, can he proved to deed. 17. Where A. agreed in writing, in consideration of his own note to B. for $2,850, due first January, 1830, and also of his transfer to B. of C.'s note for $2,350 to pay $200, if hoth notes were not paid hy the tenth of January, 1830, B. can on- ly recover of A. the legal interest if the debts be not paid, and not the specific sum agreed on. Hughes v. Fisher, Walk. 516. 18. See Bills of Exchange and Promissory Notes, 20. Considera- tion of contract must be legal and not merely beneficial or prejudicial to either party. 19. See Chancery, 61 ; for spe- cific performance of contract for personalty. 20. See Comity, 3 ; how far dis- charged by insolvent law of another state. 21. See Slaves, 16; for contract in violation of law being void. 22. All contracts are joint and several in this state by statute, whether they so appear on their face or not. Peyton v. Scott, 2 How. 870. 23. A debtor of B. paid to B.'s wife while B. was sick a certain sum of money in bank bills ; B. died, and after his death his wife having still the same bills in posses- sion, was sued by B.'s administra- tor in an action of debt for so much money had and received, for the use of B. ; held, that the action could not be maintained, there be- ing no promise express or implied to uphold it. White v. White, 2 How. 931. 24. A. contracted with S., with reference to certain lands of 0., that S. might take possession of the lands and improve them, and if he did not wish to buy, that 0. should pay S. for the improvements what two disinterested persons should say they were worth ; S. improved the lands and declined to buy, and called on O. to have the improvements ap- praised. O. failing to appoint an appraiser ; S. had the land apprais- ed by two disinterested persons, and sued O. for the amount of their ap- praisement ; held,tha.t S. had aright to recover the appraised value. Orne v. Sullivan, 3 How. 161. 25. See Real Estate, 11 ; for contract to pay for land before deed is to be executed. 26. See Executor and Adminis- trator; 37 ; how far individually li- able for contracts as such. 27. See Deed, 13 ; void for un- certain description of land. 28. See Bills of. Exchange, 49, 50, 82 ; how far maker of a note precluded from setting up defence, where he has represented there was no defence. 29. See Pleading, 59 ; of con- tract, where it cannot be understood without extrinsic aid. 30. See Chancery, 85, and Ven- dor and Vendee, generaWy ; for re- scission of contract for real estate, for fraud in vendor. 31. The obligation of a contract is the duty which the obligor is un- der to perform it ; a remedy being the mode of compelling the per- formance of that duty is therefore an essential part of the legal obli- gation of the contract ; no particu- lar form of remedy is essential so there be an adequate, subsisting one ; the power of the legislature, therefore, over the remedy, is lim- ited ; they may change it, but the power to enforce the duty must CONTRACT. 157 not be weakened. McMillan v. Sprague, 4 How. 647. 32. Where a note of a third par- ty is given for a slave warranted sound, and afterwards the vendee take up the note of this third party by giving his own in lieu of it, and the slave thus purchased turn out unsound, the vendee may make that defence to the second note in bar of it. Rentfrow v. Shaw, 4 How. 651. 33. See Slaves, 19. For contract of sale, after May, 1833, of slaves introduced^ into the state for sale. 34. See Chancery, 85 ; fraud without consequent damage, no ground for rescinding contract. 35. A simple contract is merged in a bond, both being given for same debt. Myers v. Oglesly, 6 How. 46. 36. A letter requesting informa- tion as to whether a creditor will take payment of his demand in a certain way, and an answer agree- ing to do so, is not a contract to re- ceive payment in that way. Har- per V. Calhoun, 7 How. 203. 37. See Sale, 1 and 2 ; what facts will constitute a constructive de- livery of property, and the effect of destruction of it before change of possession. . 38. 0. being the owner of a house which had been rented to B., showed A. the lease of B., in which B. covenanted to leave the premises in as good repair as he received them, and informed A. that B. had not left the house in good repair, as he was bound to, and that if A. was willing to make the necessary repairs, the character of which were shown to A., and look to B. for his payment, he might do so and have the benefit of the agree- ment of B. vi'ith C. ; A. agreed to this and did the work, and B. re- 14 fusing to pay for it, A. sued him on the lease in the name of C, C. having full notice of the suit, and a verdict was rendered for B., because it appeared in proof on the trial that B, left the property in as good condition at the termination of the lease as it was at its commence- ment ; held, that A. could recover of C. the value of the work done on-, the house; he must abide by his representations. Cartwright v. Carpenter, 7 How. 328. 39. An agreement between a defendant in an attachment suit and an attorney at law, where slaves were attached, that if the attorney succeeded in defending the suit, the defendant would trans- fer and convey to the attorney her right to the slave, but was not to warrant the title, and the defend- ant aftervfards compromised the suit, and delivered all the slaves, includ- ing the one thus conveyed to the at- torney, to the plaintiff, who had no notice of the agreement with the at- torney ; held, that the attorney could not maintain an action of detinue against the plaintiff for the slave ; the agreement vested no present interest in him, and the attachment being a lien on all the slaves, was perfected by the sale of them to the plaintiff. Peck v. Web- ber, 7 How. 658. 40. A contract must be governed by the law of the place where it is to be performed. Martin v. Mar- tin, 1 S. & M. 176. 41. Every workman who con- tracts to do a, piece of work, there- by impliedly warrants that he will bring sufficient skill and dexterity to its performance, to complete it in a just and workmanlike manner ; and if he do not do it in that manner, he will not be entitled to recover. Lefore v. Justice, 1 S. & M. 381. 158 CONTEACT. 42. A person who has accepted an order to pay a certain sum out of moneys he may collect on claims in his hands, and who collects on those claims the currency of the state, which afterwards depreciates, ■cannot escape the payment of his acceptance by a tender to pay the funds he had collected ; the holder is entitled to good money. Van Vacier v. Brewster, 1 S. & M..400. 43. See Banks, 21 and 22 ; the maker of a note payable to a bank which has assigned it cannot set up as a defence, that the notes of the bamk were not at par when the debt matured. 44. See Vendor and Vendee, 1 1 ; for such defects and fraud as will entitle to rescission of contract. 45. Where cotton was delivered in part paymefnt of a note, in the absence of proof as to the price agreed on, the market value of the cotton at the place of delivery may be proved ; aliter, if there had been a special contract. Phillips'^. Com- mercial Bank of Manchester, 1 S. &, M. 636. 46. E. contracted with M. to act as overseer for him for one year, for three hundred dollars a year ; M. died before the expiration of ihe year, but E. continued to act as overseer, till the year had ex- pired, and sued M.'s administrator for the year's wages ; held, that he Was entitled to recover for the whole year. Hill v. Robeson, 2 S. & M. 541. 47. An agreement between the Vendor and the vendee of land, that if the vendee should fail to pay the notes given for the purchase- money at maturity, he should pay the vendor refit at a certain price and interest oh the notes ; and -the «lrendor, in case he was compelled to take the land back, should allow the vendee for improvements, does not exonerate the vendee from his obligation to take the land, if the vendor insist on it, and the latter may sue him for and recover the purchase-money. Beaty v. Har- keij, 2 S. & M. 563. 48. If parties enter into a special contract by which one agrees to do certain labor and furnish certain materials, and the other agrees to pay a certain sum, the laborer can- not abandon the work before it is completed and recover for what he has done, in indebitatus assumpsit ; if, however, the party, who aban- dons the contract have furnished lumber, which, is afterwards used by the other party, he can recover the value of the lumber used. Wooten v. Read, 2 S. & M. 585. 49. See Tax Collector, 5. A re- peal of a law cannot affect a bond executed under that law previously. 50. See Consideration, 17 ; re- assignment of a bond for title, good cotisideration. 51. See Vendor and Vendee,2l, and for right of rescission where bond for title is given, on account of want of title, and see vendor and vendee for rescission of con- tract generally, for want of title. 52. In an action against an un- incorporated banking company a certificate of the agent of the as- sociation, that "M. had deposited with him four hundred and thirty dollars, in tickets, on deposit, sub- ject to him only, on the return of the certificate," imports on its face no liability against the company. Lake v. Munford, 4 S. & M. 312. 53. An unincorporated banking company was formed in 1838, and issued a large amount of tickets ; under a privilege in the articles of association, for the admission of new members, L. and M. in 1839 CONTRACT- 159 became members of the associa- tion ; held, that they were not liable for the tickets issued in the pre- vious year. lb. 54. Where an association to bank, has dissolved its connection, and appointed commissioners to wind up, neither they nor their agents have any authority to bind the members of the association by any new undertaking, lb. 55. See Assumpsit, 16 ; when sipecial count on contract may be abandoned and' resort had to com- mon counts ; and when a party, who has paid part and contracted to pay the rest of the cost of an article on its delivery, can recover back what he has paid. 56. See Bail, 2 ; a bail bond is no longer obligatory after the stat- ute has taken away the right of the bail to deliver up his principal ; and that statute does not impair the obligation of the contract. 57. See Considereetion, 21 ; whether a covenant to deduct from the purchase-money of land, if the title fail, is a re^ covenant, and passes with the land ; and whether the purchaser, when sued for the purchase-money, may not set up a failure of consideration to the ex- tent of failure of title. 58. He who wishes to avail him- self of a contract containing con- ditions precedent on his part, to be performed, must in pleading plead performance of them, and in making proof, prove it. H. exe- cuted a deed of trust on certain slaves and other property, to F. as trustee, to secure E. in the payment of certain notes due him by H. After the execution of the notes and deed of trust, H. & E. had an agreement, by which they arranged the terms of the settlement of the note ;• part o'f these terms was, that H., by a day named, was to de- liver up to E. the slaves named in the deed of trust ; at the end of the agreement was this clause : " Whenever the above stipjilatioos of compromise are complied with, it is to be a full settlement of all debts and demands of either party against the other, and a full release either at law or in equity." H. having failed to dehver the negroes to E. as stipulated, F., the trus- tee, brought an action of replevin against J. H., who had one of the slaves in his possession, for it ; the court below instructed the jury that the agreement of compromise changed the title from ,F. to E, who alone could recover ; held, that.the instruction was erroneous ; that no part of the agreement went into effect until H. had perforjsned ,hjs condition precedent of deliverijijg the slaves to E, Fvltz v. li^e, 6 S. & M. 404. ■ •- 59. The Commercial Bank of Manchester lent to C. & M- $12- 000, for which they were to ship cotton to the merchants, of the baflk, to be shipped to Liverpool and sold for account of C. & M., and the proceeds to be credited on the note of C. & M. for the sum lent ; C. & M. shipped ,twa hundred bales of cotton, which were sent to Liverpool, and for which the bank credited C. & M.'s note with $6711 39, as the pro- ceeds of sale ; they, not being sat- isfied with the credit thus given, lit was held, that they had a right to show, by way of increasing .the off-set, the quality of the crop of cotton of that year, the usual weight of the bales, and the aver- age price at Liverpool about the time the sale took places the ac- count of sales rendered by the Eiiglish' house (to which the cotton 160 CONTRACT. was shipped) to the bank would not be evidence in itself ; the de- position of some one acquainted with the transaction would be re- quisite to establish itS' truth, and thus make it admissible ; nor, in such case, would the defendant be authorized to show that the notes of the bank were, at and near the time of the maturity of the note, at a discount in New Orleans, by way of increasing the amount of off-set ; if any such inquiry be in- stituted, into the value of the mo- ney loaned, it must be confined to- the time of the loan, and the place where it occurred ; if the notes were . at par value, at the time of the loan, and the bank be by the contract liable for the difference of exchange, the measure of her liability would be the premium between par and exchange on Liv erpool, at the time of the sale of the cotton; if the notes were be low par when they were paid out by the bank, then the amount of discount on them, must be added to that premium, so as to make them equivalent to par funds when they were paid out. Commercial Bank of Manchester v. CMsholm, 6 S. & M. 457. 60. In this country a contract for overseer's wages is not an en- tire contract by the year, nor regulat- ed by the strict law of contracts, and although an overseer may contract for a year, and may be turned off for misconduct, or leave voluntarily before the year expires, he is, not- withstanding, entitled to recover for the time he conducted himself pro- perly ; he cannot, however, put an- other in, instead of himself, though equal to him in capacity, without the consent of his employer; where, therefore, H. engaged S. as an over- seer, for a year, at $650, and be- fore the year expired, S. left with- out the knowledge or consent of H., though he employed a substi- tute, who during the absence of S. conducted the business of H. equally as well as S. could have done, and S. sued H. for his full wages, and the jury returned a ver- dict in favor of S. for the whole sum claimed, with interest ; held, that the verdict was excessive, and a new trial should have been granted. Hariston v. Sale, 6 S. & M. 634. 6 1 . Where a bond was payable on its face to B., it seems it is a matter of doubt whether it would be admissible in a court of law to prove that the obligation did not originally belong to B., but to a bank. Lanier v. Trigg, 6 S. & M. 641. 62. P. entered into a contract with the Jackson & Brandon Rail- road & Bridge Company, by which he agreed to build a bridge over Pearl River, and to construct a turnpike-road from the eastern end of the bridge to the termina- tion of the swamp, in an eastwardly direction ; and the company agreed to pay him $37,500 for the bridge over the river, forty-four cents per cubic yard for making the embank- ment for the turnpike, and ten dollars per lineal foot for building all necessary bridges ; afterwards P. entered into a contract with the Mississippi & Alabama Railroad Company, to which the Bridge Company were also parties, by which he agreed to construct a railroad, furnish material, &c., from Jackson to Brandon, and the railroad company agreed to pay him therefor $204,000, and an ex- tra sum for excavating reck. In the last contract there was a clause declaring that the bridge company CONTRACT. 161 had abandoned their scheme, and that they thereby assigned to the railroad company all their rights and privileges under the first con- tract with P., but in the ,last con- tract it was expressly stipulated that the building of a bridge over Pearl River should not be included in P.'s obligations to the railroad company ; held, that the two con- tracts must be construed together, and that P. was entitled to receive from the railroad company the $37,500, forty-four cents per cu- bic yard for making the embank- ment, and ten dollars per lineal foot for building bridges, in addi- tion to the $204,000 and the extra sum for excavating rock. Petrie V. Wright, 6 S. & M. 647. 63. Corporations may contract under their- corporate seal, by a vote of the directory entered on the books of the corporation, or by their agents acting within the scope of their authority ; and bind- ing contracts may be implied from their corporate acts, without either a vote, deed or writing. lb. 64. W. P. contracted with the Mississippi &, Alabama Railroad Company to build a railroad, fur- nish materials, an engine, &c.,for which the company were to pay him a stipulated sum, a portion of which was to be advanced to ena- ble him to purchase slaves to work on the road ; and he was to exe- cute to the company- a mortgage on the slaves so purchased, as a security for the diligent and faith- ful performance of his duties ; they advanced the money and he pur- chased the slaves and executed the mortgage ; the company afterwards, and before the road was completed, adopted several resolutions ; by the first of which they relea^d W. P. from his obligation to furnish an 14* engine ; by the second they direct- ed his mortgage to be cancelled j and by the third, after admitting in the preamble that they had failed to supply him with par funds, they requested that he should pro- ceed to finish the road at his own expense, and V retain it until he should be repaid by the profits ; they subsequently agreed that F. H. P. should be substituted as a contractor in the place of W. :P., and that they would give him $15,000 to complete the. road; W. P., at the same time, gave to the company his verbal promise that F. H. P. should finish the road ; F. H. P. then, with the knowledge of the company, proceeded to work on the road, and continued to work on it for some time, though he never finished it ; held, that the resolutions, by substituting new terras and conditions inconsistent with the original agreement, amounted to . an abandonment of the contract with W. P., and when taken in connection with the other circumstances and facts in the case, were a settlement of the balances between W. P. and the company; and a discharge of hini from all obligations on account of his contract or mortgage. lb. 65. P. contracted with the Mis- sissippi & Alabama Railroad Com- pany to build a railroad from Jack- son to Brandon, fpr which he was to receive about $281,000, to be paid from time to time, as P. in the constructian of the road might, in his own opinion, requife it. The company failed to keep him sup- plied with par funds, and after paying him $298,026, most of which was in depreciated bank paper, they released him from the further prosecution of the road, . and cancelled the mortgage he had 162 CONTKACT. given them for the diligent and faithful performance of the work on the road ; ,when this release was- given and mortgage cancelled, P. claimed large damages against the company for their failure to comply with their contract ; they refused to allow him the whole amount claimed, but they allowed him a part of it, and a final settle- ment took place between them. P. in his answer stated, and several witnesses proved, that the settle- ment was fair and made in good faith ; held, that even though P. may have received more than he was strictly entitled to, the settle- ment was a valid one, not only as to the company, but also as to credi- tors of it. 76. 66. If conditions, which are im- possible or insensible, be annexed to a contract, they are inoperative and void, and the obligation of the contract remains absolute, if it be not for the doing of an illegal thing ; but, if any sense or certain' ty can be made of the conditions, the ■whole shall stand ; B. deposit- ed $1235 with J\I., in trust, to be returned whenever, within two years thereafter, B. would make, before any tribunal having compe tent jurisdiction, good and suffi cient proof, satisfactory to the ad rainistrator of E., of the payment by B, on a day named, to E. or his duly authorized agent,- of the sum of #950 ; to be applied on certain payments to be made by B. to L., in pursuance of a certain agree- ment between B. & L., whether such payment was made by k note or in cash ; held, in an action by B. against M. to recover back the $1235, that the conditions, so far as they relate to the manner of making the proof and its sufficien- cy, are inoperative, and that B. was entitled to recover if he could prove the payment of the $950 to E. or his agent, without having made the preliminary proof to a tribunal or to E.'s administrator. Merrill^v. Bell, 6 S. & M. 730. 67. A court of equity will never rescind a contract, unless the par- ties can be put in statue que. Pintard v. Martin, 1 S. & M. Ch. 126. 68. See Slaves, 19 ; for illegal contract for the introduction of slaves, and how far a court of equity will lend its aid to effect a rescission of such contract, and on what terms. 69. A contract to sell " five sec- tions of land claimed by the vendor as the assignee of certain Choctaw Indians, who claim by virtue of the fourteenth article of the treaty made between the Choctaw tribfe and the United States at Dancing Rabbit creek," without describing the 'lo- cality or boundary of the sections, and when it appeared by the con- tract, the vendor claimed to own, as assignee, thirty sections under the same title, is void for uncertainty, and a, note given in consideration thereof is not obligatory ; and parol proof is inadmissible to supply the omission. Wilkinson v. Davis, Freera. Ch. 53. 70. See Vendor and Vendee, 43 ; what circumstances take case out of statute of frauds ; and see Vendor and Vendee, 42-47, for rescission of contract. 71. If on ficcount of a contract between A. and B., A. gives his note to- C, who was a creditor of B. ; A. cannof be relieved from the payment of his note, because of a fraud committed by B. in the con- tract with A. Williamson v. Raney, Freem. Ch. 112. 72. Where a person, holding a CONTRACT. 163 deed of trust on land and negroes, voluntarily agreed to wait for the collection of the debt due to him, till the debtors could make it out of the annual crops ; held, that the agreement was without considera- tion and could be disregarded by the creditor at his will ; and that were it otherwise, such agreement resting in parol, could not explain away or change the contract set forth in the deed of trust. New- man V. MeeR, Freem. Ch. 441. 73. To discharge one party to a contract, on the ground of the fail- ure of the other to perform his part, such failure must be clearly established by full, direict and satis- factory evidence. Wright v. Petrie, 1 S. & M. Ch. 282. 74. P. contracted to build a rail- road for the Brandon Bank, at a stipulated price, and receiving mo- ney from the bank for that purpose, executed a mortgage to secure its proper application. P. abandoned the work before its completion, and while the bank was in advance of money to P. ; the bank being in embarrassed and failing circum- stances, without valid consideration, voluntarily released the mortgage, and discharged P. from the debt ; held, that the release of the mort- gage and discharge of the debt were fraudulent and void, as to the judgment creditors of th^ bank. lib. 75. In forming an estimate of the damages sustained by one par- ty, for the failure of the other to perform a contract between them, the possible profits of th^ one, or the amount possibly saved to the other, is not the proper criterion, lb. 76. P. being about to construct a railroad for an incorporated com- pany, which was to make advances of money for that purpose, execut- ed a mortgage to the company, to indemnify them against any loss by reason of his failure to comply with his contract ; P. at a time when the company were largely, in advance to him beyond the amount expended, abandoned his contract ; held, that as to the sum so in ad- vance by the company, the dama- ges sustained by them would be considered as liquidated, and so far the mortgage and damages would be subject in equity to a judgment creditor of the company, seeking to subject them as equitable assets. lb. 77. In a contract between a company and an individual, where- in the latter agreed to build a rail- road for the former, and the former agreed to pay the latter in instal- ments, as the work progressed ; held, that the latter would be enti- tled to recover a ratable portion of the money, for the ratable per- formance of the work. lb. 78. Where one party abandons a contract with the consent of the other, which he has undertaken, that consent would bind the other to pay for that portion of the con- tract actually accomplished, lb. COPARCENERS. Where coparceners sue at law for the use and occupation of their ancestor's land, they must all unite in the suit. Carmichael v. Hunter, 4 How. 308. CORONER. 1. In an action against a coro- ner on his bond, for a failure to make the money on an execution directed to him, his reception of the process and return thereon es- top him from denying his author- 164 CORPOEATION. — COSTS. ity, though it do not appear that the sheriff was interested and his office vacant. Longacre v. Tlie 'State, 2 How. 637. 2. See .Sheriff, 28; service by coroner will be presumed to have •beten proved in the court beflow, if ihis return be regular. CORPORATION. 1. See Evidence, 59, 60; how far books of, evidence ; and how far action may be maintained on original subscription for stock. 2. A failure of corporators to meet according to their charter, does not work a forfeiture thereof ; nor does a failure to elect "officers at the stated times ; the old officers hold until the new are elect- ed. Smith V. Natchez Steamboat Co. 1 How. 479. 3. Corporations under the gene- ral issue are by the common law bound to prove their corporate character ; nor need the defendant make the objection of want of cor- pdrate authority by plea in abate- ment, as that would be but the plea of nul tiel corporation, which is bad as amounting to the general issue. Carmichael v. Trustees of School Lands, 3 How. 84. Since the act of 1836, a corporation su- ing need not prove its corporate character under the general issue ; it is otherwise, however, if the plea of general issue be verified by affi- davit denying the corporate char- acter of the plaintiff, in which event the corporation must prove ' its authority. Vicksburg ^ Water Works 4* Banking Co. v. Washi ington,! S. & M. 536. 4. Trustees of school-lands are quasi corporations, and bound by the same rule, to prove their char- acter under the general issue. ,Ib. 5. The act of the legislature of 1836, which declares that all pleas to the action shall be deemed and adjudged as admitting the parties and the character of the parties suing, i&c., applies to corporations. 'Reedy. The Benton Sj- Manchester •Railroad Company, 4: How. 257. 6. See Trustees of SclwohLands, 2 ; for power 6f corporations to sue its own members.^ 7. A corporation is subject to the constitution and general ilaws of thfe land in force at the time of its creation, and applicable to its condition precisely as a natural person, except so far as its char- acter has conferred exemptions i or imposed restrictions. Commercial Bank of Manchester v. Molan, 7 How. 508. 8. See Usury, 9-115,; for its ef- fect on contract by corpomtiaa; and for the consequence of a cor- poration exceeding its power in a contract. ' 9. See Banks, 30 ; corporation, by confirming acts of its agent, makes them binding. 10. See Banks, 68 ; how corpo- ration may contract. 11. See TFiZZ, 31 -44; for pow- er and duty of a corporate body, clothed with trusts under a will, to cfirry those trusts into execution, and who may object to a want of power in the corporation to do so. See Banks, for CorporaiioOT, passim. COSTS. 1. See Evidence, SiM. Liability for costs will : not disqualify prose- cutor, as witness. State Vj i£/«n- nerhasset. Walk. 7. COSTS. 165 2. See Slander, 1. As to costs in, where damages not exceed ten dollars. Gayden v. Bates, Walk,. 209. 3. It is doubtful, whether after a final judgment there can be a re- laxation- of costs, as it is the duty of the party to see that the costs entered on the fee-book are of the proper charge ; but after such judgment has been extinguished by forfeiture of a forthcoming bond, the execution will not be quashed on the ground of exorbitant costs charged. Clark v. Anderson, 2 How. 852. 4. The assignee of an.unfounded or falsely represented claim may recover of the assignor the cost ex- pended in its prosecution. Cart- wright V. Carpenter, 7 How. 328. 5. The plaintiff, in an action at law, who obtains a judgment, and the appellant in the high court of errors and appeals, who reverses a judgment obtained against him in the court below, are each liable for the costs incurred in the respective courts, in prosecuting the claims, and when the costs are not made out of the defendants, the clerk may, on taxing the costs against the plain- titr, issue an execution against' him therefor ; the bill of costs, as taxed, having the authority of a judgment Officers of Court v. Fisk, 7 How. 403. 6. The cle)rk is entitled to his costs for recording the final record of a cause. lb. 7. The awarding of costs by the probate court, is a matter within the sound discretion of that court, and will not be reviewed on error by the high court. White v. Lit- tlefield, 7 How. 406. 8. Where a case is dismissed by the high court for the want of juris- diction, no judgment for costs can be given ; the party who brings the case into the court would be liable to the officers in another form for their fees and costs. Green v. Whiting, 1 S. & M. 579. 9. Where, on motion of the clerk and sheriff, a rule was grant- ed against the plaintiff to give secu- rity for costs, it was not given, yet the cause was tried, and judgment rendered for plaintiff; it was held, too late after judgment for the defendant to complain that the se- curity was not given. Grimball v. The Mississippi and Alabama Railroad Co. 3 S. & M. 38. 10. See New Trial, 99. New Jrial on payment of costs in ninety days, is a new trial absolute, and the other must resort to legal mea- sures to recover costs. 11. Where the proceedings and process are wholly void, no costs can be collected from the de- fendant ; as where the probate court issues process to take pro- perty of the intestate out of the pos- session of the administrator. Win- gate V. Wallis, 5 S. & M. 249. 12. If the maker of a note, pay- able at a particular place, prove that he was ready at maturity at that place to pay, he will be exone- rated from costs. Cook v. Martin, 5S. &M. 379. 13. A party at whose instance a rule for security -for costs is granted, may lose his right to have it made absolute, by want of action upon it, or by his own waiver of the right ; if, therefore, the party at whose instance such a rule hag been asked, apply to have it dis- missed before it is made absolute, it is error to strike thfe case from the docket, because the rule has not been complied with. Missis- sippi and Alabama Railroad Co. V. Ballardr, 5 S. & M. 606. 166 COSTS.— COVENANTS. 14. See Assumpsit, 17. An ac- tion in assumpsit is not intended by the words " action on the case," in the statute limiting the costs to the amount of the judgment, where the latter does not exceed ten dollars. 15. See Attachment, 46. Plain- tiff is not obliged to give security for costs, unless the surety in the attachment bond is insufficient. V6. Where a rule for'security for costs has been allowed in the court below, and the record does not show that any motion to dis- miss was made below for want of security, nor that the security re- quired by the rule, was not given, and the cause ■progressed to judg- ment after the rule was taken ; held,, that the high court of errors and appeals would not disturb the judgment. Bullard v. Dorsey, 7 S. &M. 9. sippi, "a separate superior court of chancery," is created with full jurisdiction in all matters of equity ; it is provided that " the chancellor shall be elected by the qualified electors of "the whole state for the term of six years, and shall be at least thirty years old at the time of his election ; " ,the legislature after- wards passed a law providing for the appointment of a special chan- cellor, by selection of the parties litigant, or by lot, if they could not agree, to sit in the trial of any case, where the chancellor from interest or other cause was disqualified from tiying the case : Held, that the act of the legislature was not unconstitutional. Montgomery v. Commercicd Bank vf Rodney, 1 S. &■ M. Ch. 632. COUNTY COURTS. 1. See Roads, 3 and 4; eis to their jurisdiction and power in lay- ing out roads. Stockett v. Nichol- son,, Walk. 75. 2. The proceedings of county courts cannot be established by ^a- rol; they must be recorded and proved by the record. 76. 3. See Circuit Court, 1 ; as to jurisdiction, on abolishment of county courts. 4. Probate clerk is the proper officer to certify all records of the old county court, whether civil or criminal. Byrd v. State, 1 How. 247. COURT OF CHANCERY, (SU-; PEHIOR.) By the constitution of Missis- COVENANT. 1. Where an action of -covenant was brought on an agreement to deliver so many pounds of ginned cotton, a plea of payment, or set-ioff could not be introduced, and the party defendant would have to ap- ply to a court of equity to have his payment allowed. Barnes v. Lloyd, 1 How. 584. 2. A court of equity would have jurisdiction of a bill to enjoin a suit at law, on a covenant to deliver so many pounds of ginned cotton, when the covenant was discharged by a subsequent parol agreement to. accept a certain sum of .money, in satisfaction of the covenant, and payment of part of it. In such case, accord and satisfaction could not be plead at law, because the satisfaction was not complete. tb. 3. See Real Estate, 11-13, and 50 ; for construction of mutual CRIMINAL COURT.— CRIMINAL LAW. 167 and independent covenants to pay for land and make title. 4. See Damages, 6 ; when dam- ages agreed on for non-perform- ance of covenant, is mere penalty or liquidated damages. 5. See Real Estate, 39 ; for construction of mutual and depend- ent covenants. 6. See Deed, 41 ; for interpre- tation of vs^ords grant, bargain and sale, in a deed containing express covenants of warranty. 7. See Real Estate ; for cove- nants real, running with land. 8. See Consideration, 26. A claim growing out of a breach of covenant, not subject of set-off. CRIMINAL COURT. The act of the legislature, estab- lishing a criminal court for a cer- tain district in the state, the juris- diction of which was limited to the trial of criminals, from which cases might be removed by certiorari to the circuit court; and from which a writ of error or appeal lay directly to the high court of errors and ap- pealsi is constitutional ; such court is an inferior court, in the sense of the constitution. Thomas v. The State, 5 How. 20. CRIMINAL LAW. a. Burglary. b. General Principles. c. Indiclmeni. . d. Jury ; and herein of the grand jury, the empannelling and chal- lenge of. e. Larceny. t. Murder^ g. Perjury. h. Trial; and herein, of trial a se- cond time for same offence. a. Burglary. 1. It will not be error to refuse to charge the jury "that if, at the time of committing the burglary laid in the indictment, there was light enough to discern a man's face, it was not burglary;" it might have been moonlight* TJwm- as V. The Stale, 5 How. 20. b. General Principles. 2. A prosecutor in indictment is not compellisd to elect between civil suit and prosecution ; is com- petent witness for prosecution. See Prosecutor, 1 ; and Assault and Battery, 1, 2. State v. Blen- nerhasset, Walk. 7. 3. Defendants, separately in- dicted for same assault, may be tried jointly though they demand a separate trial. lb. 4. See New Trial, 1, 2; with- drawal of witness of the state be- fore his . examination, if not sub- poBnaed by defendant, no ground for new ti^al ; nor is fine, however large, assessed by jury, unless it be so large as to evince corruption in the jury, lb, 5. The judge of the criminal court may reexamine the causes of commitment, and remand or dis- charge the prisoner, according to his own belief of his innocence or guilt. Slate v. Doty, Walk. 230. 6. See Libel, 1, 2. 7. In criminal cases the writ of error to the supreme court will not operate as a supersedeas, unless the accused enter into recogniz- ance. State V. Craft, Walk. 537. 8. A prisoner is not entitled to his discharge, for not having been indicted within the two first terms of the court after his commitment for the offence charged, if both those terms failed to be holden ; and even if the prisoner were en- 168 CRIMINAL LAW. titled to his discharge from custo- dy, he nfight still be indicted and tried for the same offence after- ward. , Byrd V. The State, 1 How. 163. 9. In a trial on an indictment of an accessory before the fact, for murder, the record of the convic- tion of the principal, who was a slave, by a court which by law had general jurisdiction in the pun- ishment of slaves, though limited in other respects, is competent testimony ; such record showing a regular -conviction, lb. 10. In order to reverse the de- cision of the inferior court on a motion for a change of venue, ex- ception should be taken thereto, and the affidavit and motion spread upon the record. lb. 11. The return of the sheriff- that he " served a true copy of the indictment, venire facias, ajftd venire, on the prisoner," is suffi- cient evidence that the panel was served on the prisoner. Shaffer- \. State, 1 How. 242. 12. A prisoner indicted for a capital crime, who does not offer any evidence in his behalf, is not thereby entitled to the opening and conclusion of the argument. Byrd V. The Slate, 1 How. 247. 13. When all the preliminaries to a trial in a state prosecution, have been prepared by the district attorney, he may withdraw from the prosecution, and surrender it up to other persons to conduct it for the state. lb. 14. See Circuit Court, 1 ; as to jurisdiction over slaves for criminal offences. 15. See Circuit Court, 2, 3, and Venue, 3 ; as to objections that can be taken on change- of venue to original panel of grand jury, and effect of change of venue. 16. See Evidence, 40 ; as to how far confessions under fear and threats, admissible. 17. -The plea of not guilty, in a criminal case, admits the juris- diction of the court. Byrd v. The State, 1 How. 163. 18. The practising medicine, without a license from the board •of medical censors, is no offence against the laws of this state ; as that office being held during good behavior by the law of 1817, was abolished by the constitution of this state, which provides that all offices shall have a limited tenure, and no provision was made for that board. Bryant v. The Stale, 1 How. 351. 19. Where the venire required the sheriff to summon the, jury from his county, it was held to be equivalent to of his county. Woodsides v. The Stale, 2 How. 655. 20' The return of the. sheriff, that he has furnished the priscper with a list of the venire summoned, is conclusive evidence of the fact.- lb. 21. The admissions of the dying declarations of-' deceased, is not a violation of the constitution which entitles the prisoner to be confronted with the witnesses. lb. 22. If a prisoner be found guilty and sentenced to be hung, and be- fore the sentence be carried into execution, errors occur in proceed- ings in court, in the case, they will not affect the previous sentence of death. lb. 23. No one can excuse himself from the operation of a penal stat- ute, by showing that he acted as agent of another. Kliffield v. State, 4 How. 304. 24. The legislature may consti- tutionally pass a law prohibiting the CRIMINAL LAW. 169 sale of vinous or spirituous liquors, in less quantities than one quart ; they are the peculiar judges of what will conduce to the morals and public good of the state. Noe V. State, 4 How. 330. 25. A subsequent statute declar- ing a punishment for offences, differ- ent from that of the former statute and repealing that former statute, amounts to a pardon of all offences committed under the old law ; but if the new law expressly provide that it shall not affect any cases subject to punishment under the old law, it will not operate a par- don of such offences. Oliver v. State, 5 How. 14. 26. Where a person was con- victed of larceny committed, ac- cording to the allegations of the indictment, since the law of 1839, establishing the penitentiary code, and the judge below passed sen- tence on him, under the old law ; held, that this court would reverse the judgment and pass the proper sentence upon him. lb. 27. Where a judge, who was once engaged, as counsel for the state against the prisoner, is about to pass judgment on the prisoner, though he did not preside at his trial, and the prisoner's counsel challenge the judge's right to sit in the case and give judgment, and he disregards the challenge and gives judgment, it will not be error. Thomas v. State, 5 How. 20. 28. The plea of non identity, is never allowed, except in cases where the prisoner has escaped after verdict and before judgment, or after judgment and before e.xe- cution ; if the record do not, there- fore, show an escape, such plea will be treated as a nullity. lb. 29. Where a statute makes dif- ferent grades of the same offence, a 15 verdict of guilty will be erroneous, unless the jury state the grade of the offence of which they find him guilty, lb. 30. The foreman of the grand jury may be marked on the indict- ment as prosecutor. King v. The State, 5 How. 730. 31. It is not necessary that the grand jury should return, with the indictment, the names of the wit- nesses examined, or the evidence, nor need it appear of record that the witnesses before the grand jury were sworn ; it will be presumed that they were. lb. 32. The sheriff, as one of the officers of court, is competent to serve the prisoner with a copy of the venire and indictment. Friar V. Slate, 3 How. 422. 33. Where a man was convicted of stealing a negro, the affidavit of a third person that the prosecutor had declared that there was in ex- istence a bill of sale of the slave, establishing title in the prisoner, is not sufficient ground for a new trial, unless the affidavit be supported by the oath of the prisoner shewing cause why the bill of sale was not produced on the trial, and stating that it could be produced at the next trial, lb. 34. If the prisoner go to trial without a copy of the indictment and venire being served two entire days before the trial, he waives his privilege of such service. Loper v. State, 3 How. 429. 35. Where a prisoner in custody makes confessions, without any compulsion, or promise of advan- tage, they are evidence against him. Peter v. The Slate, 3 How. 433. 36. Where the appellate court quashes an indictment for want of form, the indictment will be con- 170 CKIMINAL LAW. sidered sufficient prima facie evi- dence of guilt to remand the prison- er, lb. 37. Where a bench warrant is issued in term time, returnable at the term at which it was issued, the sheriff may take a recognizance returnable to a particular day of the term, under the statute which authorized the sheriif to take a re- cognizance in vacation, in certain cases, unless the process was made returnable forthwith. Moss v. The State, 6 How. 298. The amount of the security in such recogni- zance is left to the sheriif 's discre- tion. McEwin V. The State, 3 S. & M. 120. 38. Where a defendant is recog- nized to appear at a particular day of a particular term, a forfeiture cannot be taken at a subsequent term, without notice to the party ihat the forfeiture will be applied for ; it seems it will be otherwise if the recognizance is general, to ■appear from term to term. lb. 39. The statute of this state, au- thorizing the parties to select a member of the bar to sit in civil cases, when the presiding judge has been interested in the cause, does not apply to criminal prosecutions. . Peter v. The Slate, 6 How. 326. 40. That clause of the constitu- tion which allows bail in all ex- cept capital cases, before convic- tion, does not inhibit the grant of bail after conviction ; the circuit, court has the power in all offences, except those where death is the punishment, to grant bail after con- viction, for the appearance of the prisoner, to abide the sentence of the court. Davis v. The State, 6 How. 399. 41. The act of the legislature of 1842, regulating the mode of ob- taining license to sell vinous and spirituous liquors, and prescribing the terms of the license, and the penalty of a violation of law, is con- stitutional. Noonan v. The State, 1 S. & M. 562. 42. See Evidence, 129, 130, for what averments and proof neces- sary, under indictments, for sale of liquor without license. 43. See Evidence, 131, for what evidence is admissible, under plea of autre fois acquit or convict. 44. The mayor of the city of Vicksburg is authorized, by the charter, to recognize prisoners to appear at the circuit court, to an- swer for offences with which they stand charged. Dean v. The State, 2 S. & M. 200. 45. A recognizance, requiring the prisoner to appear before the " judge of the court," to which it is returnable, is good. lb. 46. A recognizance, reciting that the offence of larceny, with which the prisoner was charged, was com- mitted in a county different from that to the circuit court of which, he is recognized, is not invalid there- by ; the recognizance must set forth the cause for which it was taken, but need not specifically describe the circumstances of the offence. lb. 47. Where the principal in a re- cognizance, was recognized in the sum of seven hundred and fifty dollars, and the surety in a like sum of seven hundred and fifty, it is error for the court to render a joint judgment against principal and surety for fifteen hundred dollars. lb. 48. The statute, which gives the accused a right to examine the in- dictment " at least two entire days before the trial," intends thereby two entire judicial days ; in com- puting, therefore, the two days, the fraction of the day of its service CRIMINAL LAW. 171 must be excluded. Nixon v. The State, 2 S. & M. 497. 49. After indictment for retail- ing spirituous liquors in less quan- tities than one gallon, the punish- ment for which was by imprison- ment, as well as fine, a capias is the proper process. McEwin v. The State, 3 S. & M. 120. 50. Where the record shows that the jury who convicted the prisoner were summoned by a sheriff, it will not vitiate the verdict, that the court below dismissed the sheriff from that duty. Kelly v. The Slate, 3 S. & M. 518. 51. Where a slave is killed by his master and overseer, or either, in inflicting chastisement upon him, the rules of common law, apphca- ble to murder, will regulate the offence, lb. 52. By statute of this state the master may be indicted for a cruel or unusual battery on his own slave ; and whether the punishment be cruel and unusual is for the jury. lb. 53. Mere intoxication is no ex- tenuation or excuse for crime, in law ; though the jury may consider it, on the question of intention or malice on the part of the defend- ant, lb. 54. The fact that motions to quash the venire facias,a.nd for an aUas venire facias, were made and overruled in the absence of the prisoner, will not affect a verdict against him ; they might have been overruled on account of his ab- sence, lb. 55. In criminal prosecutions the offence must be proved to have been committed in the county, as charged in the indictment, in order to bring it within the jurisdiction of the court. Vaughan v. The State, 3 S. & M. 553. 56. Where an indictment charges a shooting with a felonious intent, it must be proved that the gun was so loaded as to be capable of doing the mischief alleged to be intend- ed, lb. 57. Upon the general allegation of conviction of a penal offence, the intendment is, that it was as principal, the person charged was convicted. Dotvell v. Boyd, 3 S. & M. 592. 58. In criminal prosecutions, af- ter verdict and judgment of acquit- tal, neither a new trial nor a writ of error, can be granted to the state, unless the acquittal be on the ground of variance between the proof and indictment. The State v. Anderson, 3 S. & M. 751. 59. The omissio'h to state, in the minutes of the court, the character of the offence charged in the in- dictment, is immaterial, as the whole record must be taken together. Goodwyn v. The State, 4 S. & M. 520. 60. If the indictment charge the death to have happened by a leaden bullet, discharged .from a shot gun,, and the proof be that it happened from buck shot, it will be a suffi- cient correspondence between the allegata and probata. lb. 61. See Bill of Credit, 1,3; auditor's warrants are not bills of credit, and forgery may be com- mitted of them. 62. See Evidence, 156 ; on a trial of an overseer for murder of a slave, the general habit of such overseer, in punishing slaves, not admissible in evidence. 63. Where the accused was in- dicted for suffering a gaming table to be exhibited in the house occu« pied by him, it was held, that it was no excuse for him that he had let the rooms in which the exhibi- 172 CRIMINAL LAW. tion took place, and when he let them had no knowledge or expec- tation that they would he used for that purpose ; both he and his ten- ants would be equally amenable to the statute. Mount v. The State, 7 S. & M. 277. 64. See Evidence, 209 ; an ac- cused person cannot be forced into tna,\ by an admission, on the part of the state, of the truth of what he swears, in an affidavit for a con- tinuance, certain absent witnesses will prove ; if he consents to go td trial on such admission, it is an ad- mission of the absolute truth of the facts, he alleges the witnesses will swear to. c. Indictment. 65. An indiStmerit commencing with the words, " the state of Mis- sissippi," and concluding " against the peace and dignity of the same," if in other respects formal, is sufficient. State v. Johnson, Walk. 392; Greeson v. State, 5 How. 33. 66. If the words then and there precede every material allegation it will be sufficient, though they do not precede the conclusions. lb. Walk. 392. 67. In an indictment under the act of 1830, prohibiting any per- son other than Indians from mak- ing settlement within the territory, it is necessary to aver that the de- fendant is not an Indian. State v. Craft, Walk. 409. 68. The caption of an indict- ment, in these words, viz. : " the grand jurors of the state of Mississip- pi, empanelled and sworn in and for the body of the county of Warren," "is sufficient to show that the grand jurors were of the county of War- ren. Byrd v. Slate, I How. 163. 69. The caption to an indict- ment need not show that the grand jury were then and there sworn. Shaffer v. State, 1 How. 238; Woodsides v. Stale, 2 How. 655. 70. Where an indictment, pre- pared in 1833, averred the crime to have been committed in 1033; it was held, to be bad, as averring a fact inconsistent with the known laws of nature, and alleging an offence against this state prior to its existence. Serpentine v. State, 1 How. 256. 71. Counts for robbery and lar- ceny may be joined in the same indictment. Damewood v. The State, 1 How. 262. 72. Where the defendant is charged with having feloniously taken and carried away the article alleged to be the subject of the lar- ceny, it will be sufficient, though the indictment do not contain the word " stolen.'''' lb. 73. The caption of an indict- ment, in these words, " The state of Mississippi, Wilkinson county ss. : The circuit court of Wilkinson county, October term, thereof, &c. ; the grand jurors of the state of Mississippi, empanelled, &c., in and for the county of Wilkin- son and state of Mississippi, &c.," shows that the court which found the indictment was holden in this state. Woodsides v. State, 2 How. 655. 74. The mdictment averred that the mortal wounds were inflicted on the 8th of September, and the deceased died on the 13th of the same month, and that A. W. and E. W. were then and there present, aiding, &c. ; held, that there was no uncertainty in the charge as to time, with reference to the acces- sories, lb. 75. An indictment may be re- turned by a grand jury at a spe- CRIMINAL LAW. 173 cial term of the circuit court, Young V. State, 2 How. 865. 76. The indictment will be bad, unless the name of the prosecutor be indorsed thereon. Cody v. State, 3 How. 27. Peter v. State, 3 How. 433. 77. The caption of the indict- ment must show not only that the court was held, and the grand jury selected and empanelled in the proper county, but it must also show that the court was held at the particular place fixed by law, and it must directly and affirma- tively show it; presumptions will not be indulged. Carpenter v. iS Sadler v. Murrah, 3 How. 195. 83. Where a declaration in case was filed for a breach of warranty by bill of sale, of an unsound ne- gro sold at $860 ; and the proof was of the warranty of two negroes sold for $850 ; held, that the vari- ance was such as to exclude the proof. Tutt V. M'Leod, 3 How. 223. 84. See Sheriff, 19; Judgment against sheriff, evidence against sureties. 85. General reputation in the neighborhood is not admissible evi- dence on an indictment for fornica- tion. Overstreet v. The State, 3 How. 328. 86. The mere certificate of the clerk of the register of the land office, of entries of land, is no evi- dence ; the books of the register being public in their nature, sworn copies would be evidence. Woold- ridge v. Wilkins, 3 How. 360. 87. Where there is no actual proof that the division lines of sec- tions have been actually run, they can only be ascertained and fixed in the mode pointed out by act of Congress of the 11th Feb'y, 1805; whether they have been so run and marked is a question of fact for the jury on the evidence. Newman v. Foster, 3 How. 383. 88. The survey of the land is to be taken as part of the patent, and may be resorted to to control the 'calls of the patent ; and if the sur- vey show an artificial or natural boundary that can be well ascer- tained by marked trees or other- wise it will prevail, and parol evi- dence is admissible to establish it ; even though it vary from the course or distance called for, it will never- theless be taken as the true boun- dary ; yet all lines on the survey are not conclusive evidence that the line was run ; therefore, where a dotted, line occurred in a survey, it was held competent to shew by pa- rol that the line never was actually run and that surveyors used dotted lines to indicate lines that were never run. lb. 89. A patent for land is evidence in a court of law that everything has been done which the law re- quired to justify its issuance, and EVIDENCE. 205 its validity can only be questioned on the ground of fraud or mistake ; where, therefore, W. was authorized by law, to locette entries on lands not previously offered for sale, nor on town lots, and W. made his en- tries arid received a patent, they will he presumed ^to have been made in accordance with the law, in the absence" of- positive proof to the contrary ; for although the court will judicially know the acts of con- gress on the subject of the entry of land, it cannot judicially know that the particular land was never en- tered. Bledsoe v. Little, 4 How. 13 ; Carter v. Spencer, 4 How, 42. 90. Where flie testimony of a witness as to boundary was positive, and' he added that his inforiliatioh was derived from the map of the survey and the directions of the plaintiff in the case, although his statements may come from a suspi- cious source, yet, being admitted to the j)iry without objection, they are not incompetent testimony, lb. 91. Wh^re a letter was written by one of the defendants in an ac- tion of trespass to'the plaintiff, pro- posing to him to meet at a certain place and have a settlement fo'r the injuries sued for, sj^ecifying therein the letter ; held, tliat the letter was competent testimony to go before the jury, to say whether it was an admission of liability or a proposal to buy the plaintiff's peace. Prus- sel v. Knowles, 4 How. 90. See Husband and Wife, 16; how far confession of husband's adultery evidence.' 92. In an action on a warranty of title to personalty, the record of a judgment againsfthe vendee, by which the personalty was recovered from him under a superior title to liis vendor's, is conclusive evidence against the vendor of the fact of 18 recovery and the quantum of dam-'', ages ; and, if the vendor have no- ! tice of such suit, it will be also of ' the validity pf the paramount title under which they were recovered ; and if the vendor w6re . present in court when the case was tried, that will be sufficient notice of the suit. Pickett V. Ford, 4 How. 246. 9,3. See Pleading, 57, for what proof under non assun\psit sworn to, will establish execution of note. 94. See Ejectment, 8, for evi- dence in an action by purchaser at * sheriff's sale against defendant in execution. 95. The admission or the rejec- tion of evidence in the court below, will hot be regarded as e'rroneous, unless the evidence in the case be all spread out in the record, that the court may see the materiality of the evidence thus rejected or ad- mitted. Ferriday v. Selser, 4 How. 506. 96. A transcript of the- registry of names, kept, by the agent of the 'United States, under the fourteenth article of the~ Dancing, Rabbit Creek treaty, of the Choctaw In- dians who applied to become citi- zens, under the treaty, which al- lowed the agent to register the names of heads of families only, is admissible in evidence of such' ap- plication, the presumption being that the agent admitted none on the list who were not heads of faqiilifes. Newman v. Harrisf 4 How. 522. 97. The application by. an In- dian; under the treaty, to the United' States' agent, to becpme a citi- zen, specifying the lands claimed under the treaty, and the certificate of the agent that such Choctaw was registered for the land claimed, a^nd directing the register to reserve it from sale, are evidence in a suit 206 EVIDENCE. by the Indian for the land, of the identity of the land claimed under the treaty, lb. 98. Proof that a certain person was acting as the locating agent of the United States, under the treaty, made by parol,' will be sufficient prima facie evidence, that he is such officer. lb. , 99. The drawee who has refused to accept the bill, is a competent witness for either party, in an ac- tion on the bill against the other parties, and where he was present in court, ready to testify, evidence of his statements would not be com- petent. Carmi8hael v. Bank of Pennsylvania, 4 How. 567. 100. Testimony before the com- mitting magistrate, is not evidence on the trial of the prisoner. Oliver V. The State, 5 How. 14. 101. The minute book of the court is not evidence of the judg- ment ; the whole record, writ, plead- ings -and judgment, must be pro- duced. Lehr V. Hall, 5 How. 54. 102; Where an execution is proved to have been lost, it is ad- missible to read the minutes made on the execution docket, which stated the issuance of the execu- tion and the return thereon, lb. 103. SeeForthcomingBond,15; how far parol evidence admissible to show authority to fill up, blanks in forthcoming bond.. ■ 104. The certificate of the clerk of«the high court of errors and ap- peals, that a judgment has been re- versed, is admissiWe'in evidence of that feet. Hoy v. Couch, 5 How. 188. 105. See Instruction, 11 ; as to power of court to charge jury on weight of evidence* and for failure of evidence to find for defendant. 106. See Franchise, 1-3. What evidenqe is necessary to support action for disturbance of franchise, and to prove damages. 107. To constitute error in rul- ing out testimony, its relev3,ncy must appear ; to reject mere cumu- lative evidence will not be error ; and where the bill of exception re- cites that testimony was introduced,, without setting out what it was, it will , be presumed to have upheld the judgment below. Townsend v. Bleipett, 5 How. 503. 108. See Judgment, 61 ; how far reversed judgment eyidenQe to justify the " action of the plaintiff therein before his judgment was re- versed. 109. Where evidence, Written or oral, is rejected in ihe court below, exceptions to its rejection will not be . . regarded, unless the party except- ing emliody the evidence rejected in a bil'l of exceptions, that the court may consider of it. Harris v. New- man, 5 How. 654. no. Where evidence was ob- jected to as incompetent, but the party afterwards waived the objec- tion and agreed that the " evidence , should go before 'the jury for what it was worth," he cannot be heard afterwards to object to the verdict o^ account of the admissibility of such testimony. * Carter v. Graves, 6 How. 9. . 111. The objection to the com- petency of a witness may be made at any time before the case is sub- mitted to the jury, by instructioiis from the court to disregard the tes- timony of such supposed incompe- tent witness, lb. 112. See Bills of Exchange and Promissory Notes, 84; how far identity of instruments as part of the same contract, a question of fact for the jury. 113. The account of a defendant with the bank at which he has had. EVIDENCE. 207 discounts is competent evidence to show the rate of interest reserved, and may be established . by the cashier, or proved by showing that it was correctly copied from the books of the bank, or by showing t;he clerk's.handwriting. Forniquet V. West Feliciana Railroad Co. 6 How. 116. 1 14. See Chancery, tit. Answer ; vhen answer 6{ defendant, evidence against his co-defendant. 11,5. In an action of assumpsit by E. against S. as sheriff, for mo- ney collected on execution of E. against H., it is not competent for S. to introduce as evidence the record of a judgment in fiivor of N. against H., in qrder to show that the money made on the execution in favor of E. against H. was ap- propriated to the execution in favor of N. against H., E. having been no party to that judgment. Engle- hard v. Sutton, 7 How. 99. 116. If the court permit impro- per evidence to go to the jury, it seems the error will not be .cured by afterwards instructing the jury to disregard it. lb ; sed conira,Car- ierv. Graves, 6 How. 9 ; qjzod vide. 117. See Garnishment,' 9, 10; what is evidence on trial of issue •contesting truth of garnishee's an- swer. 118.. See Banks, 14 ; what evi- dence of custom may be adduced. 119. A judgment is evidence only between , parties and privies ; but vvhere a suit was brought in the name of A. for the use of B., with the knowledge of A., the judgment in that suit will be evi- dence in a suit between A. and B.'; whether conclusive, or only prima facie when offered as evi- (dence. Queer e 7 Cartvirighi v. Carpenter, 7 How. 328. 120. Cumulative evidence is ad- ditional evidence to support the same point, and which js of the same character with evidence al- ready produced ; the fact that it tends to prove the same proposi- tion does not make it cuniulative ; therefore where a suit was brpught on b. bill of exchange, the execu- tion of which was denied under oath by the defendant, and two witnesses testified on the trial that the defendant was in Tennessee when the bill was drawn, purport- ing to be drawn in this state, tes- timony of a witness who 'was pre- sent when the bill was drawn, thait the defendant was not there, and his name was signed by another party is not cumulative. Varde- man v. Byrne, 7 Mow. 365. 121. See Chancery, 121 ; for the weight of answer to bill of discovery. 122. Although a justice of the peace might not be permitted to falsify his own certificate ; yet, if when called on to explain the man- ner in which his certificate was obtained, and he shows facts which wiH invalidate it, his testimony -will be competent.^ Wood v. Ameri- can Life Insurance and Trust Com- pany, 7 Hqjpr. 609.' 123. Identity may be established by circumstantial as well as posi-^ tive proof; where, therefore, an ac- tion was brought for harboring a slave, and one witness described the slave, it was held competent . to ask another witness if he had seen a slave answering that de- scription on the plantation of the defendant. Suzett v. Buckels, 1 How. 663. 124. Where a note and certifi- cate of stock correspond exactly as to dates and amounts, and there is no other proof of the considera- tion of the note, tHat exact cor- 208 EVIDENCE. respondence, if left unexplained by the other party, is sufficient basis to uphold the finding of the jury, that the certificate of stock formed the consideration of the note. Barringer v. Neslit, 1 S. & M. 22. 125. See Fraud ; when sub- vendee may ^et up fraud of first vendor. 126. The court cannot judicially know the law of a foreign state ; it must be proven as a fact to the court. Martin y. Martin, 1 S. & M. 176. - - 127. Where testimony is ad- dj-essed to the court, objections to competency are not entitled to the same weight that they would be if the testimony were addressed to a jury., Clark v. Kingsland, 1 S. &'M. 248. 128. See Warranty, 8, for what evidence will uphold verdict of breach of warranty. 129. On the trial of a prisoner for selling liquor cohtrary-to the statute, the statement of a bystander at the time of sale, " that the pris- oner did. let the negro man have the whisk&y" although made in the presence of the prisoner, is not evi- dence, the bystander should be pro- duced. Noonan v. Tm State, 1 S. & M. 562: ' 130. On the trial of a person for a violation of the statute regulating the mode of obtaining license to sell spirituous liquors, it is not ma- terial to the prodf of spirituous li- quors, to charge its particiilar kind by name ; or to the proof of a per- son being a slave to whom the li- quor was sold, to aver his master's name. lb. 131. The evidence under the plea of autre fois acquit or convict is nbt exclusively of the record ; but may be '' oral to the extent required under the circumstances. lb. 132. See Bills of Exchange and Promissory Notes, 120 ; for what evidence of price of cotton, given iii part payment of note, is admis- sible. 133. See Bank, 21; whether in a suit by a bank on a note payable to itself, t^e' value of the, note can be proved by way of diminishing the amount of the recovery. 134. The signature to a^note in these words, viz. " C. G. Eobert- son, ' guardian ; H. D. Eobertson, guardian, right of my wife, C. G. Robertson," affords no legal in- ference that the C. G. Robertson, signing th#'note is the same C. G. Robertson, who is the wife of H. D. Robertson.. Robertson v. Banki, 1 S. & M. 666. 135. Mere silence of the vendor pf land when charged with the con- cealment of an incumbrance, is not sufficient evidence of a fraudulent concealment to justify a rescission of the contract. Halls v. Thomp- son, 1 S. & M. 443. 136. It is for the jury and not the court to show presumptions from the facts proved.^ Dickson v. Moody, 2 S. & M. 17. . 137. Where a witness has testi- fied in the magistrate's court in a case of assault, and also in the circuit court in the same case ; it is competent to introduce the justice be- fore whom he testified fyrst, to pi'ove. by him that the written statementof the witness taken before him had been lost, and also to prove what he testified to before him, in order to impeach his testimony ; the justice of the peace not being bound either to preserve or send to the circuit court the evidence tajcen in writing by him. Pearce v. Furr, 2 S. & M. 54. Yet if the' written state- EVIDENCE. 20D ment be in existence and its ab- sence be not accounted" for, the justice cannot testify. Peter v. The State, 4 S. & M. 17. 138. Under an issue whether a payment alleged to have been made by the transfer of a. note, was valid, which note, the replication averred, had been transferred in fraud by the defendant, who falsely and fraudulently withheld the know- ledge from the plaintiff that nothing was due on the note, it was held competent to ^how that nothing was due qn the note before it was trans- ferred ; such transfer with the con- cealment of that knQwledge being fraudulent. Hoopes v. Newman,: 2 S. & M. 71. 139. See Bills of Exchange and Promissory Notes, 127 ; letter of indorser evidence for consideration of jury. 140. See Bills of Exchange and Promissory Notes, 129 ;' an admin- istrator who is defendant, is an in- competent witness,' unless the ad- ministrator wilLcome into court and express his willingness to testify. 141. Where a loss has happened to insured property and a corres-. pondenoe ensues between the in- sured afid the insurers as to the extent of loss, and the mode by which it shall be ascertained and adjusted, and the insurers state that " they are to be liable for all damages sustained by a peril of the river ; " and the parties cannot agree on a settlement ; in a suit for the loss, the parties are re- mitted to their original rights un- affected by the negotiations for set- tlementi Nattihez Insurance Com- pany v. Stanton, 2 S. & M. 340. 142. See Bills of Exceptions, 19; when evidence must be set out in, and when it need not be. 143. A. certificate of the register 18* of a land-oiRce, is" evidence of title under the statute of this state. Robinson v. Parker, 3 S. & M. 114. 144. Where the parties to a suit, have agreed upon the facts, and for the purpose of using that agree- ment as evidence have reduced the same to writing, they are concluded by it from introducing any evi- dence to vary or contradict the agreed state of facts. Morgan v. Reading, 3 S. & M. 366. 145. The answer of the princi- pal obligor, to a bill of discovery filed against him, is evidence against his co-obligors though his mere sure- ties, where they are all sued jointly. Montgomery v. Dillingham, 3 S. & M. 647. 146. A party is not bound to adopt any particular order in the introduction of his testimony ; there- ' fore, where to an action oh a bond with conditions, payment was plead,, and the defendant asked a witness " if the plaintiff had not sold the defendant some property, and for how much, and how much had been paid ; " and' the court refused permission to the witness to answer j held, that the question was- perti- nent, and should have been .'an- swered, as the payment of a bond might be proved by parol. Tinnin V. Garrett, 4 S. & M. 207. 147. It is not necessary that evi- dence offered should appear at the time it is pffered to be relevant, it is sufficient if its relevancy appear at any time before the case is closed. Lake v. Munford, 4 S. & M. 312. 148. Wherever an instrument offered as evidence in a civil suit^ differs so little from that described as not to be likely to produce any detrimeht to the opposite party, eithef in the then pending, or any future controversy, the evidence- 210 EVIDENCE. as a general rule, should not be excluded ; therefore, in a motion against a sheriff and his sureties, an execution differing from that de- scribed in the notice, by the amount of sixty-two tind one-half cents in -the statement, of costs, should not be excluded as evidence ; in any event the court ought to allow an amendment of the notice so as to make them correspond. Fulcord V. Hamierlin, 4. S. & M. 649. 149. A witness under suhpmna duces tecum is compelled to pro- duce all documents in his posses- sion, unless he have a reasonable excuse to. the contrary; of the va- lidity of which excuse .the court and not the witness,' is to judge. Chaplain v. Briscoe^ 5 S. ' & M". 198. . 150. See Bills of Exchange and Promissory Notes, 156 ; the affi- davit of the plaintiff of the loss of a note, is a foundation for the ad- mission of secondary evidence ; but is not evidence itself. 151. In an action of ejectment, the boundary of the property in controversy is always provable by parol. Surget v. Little, 5 S. & M. 319. 152. In an action of ejectment, the survey of the preniises in con- troversy, made prior to the institu- tion of suit, even though made by order of court, in another suit, be- tween other parties, is not admissi- ble in evidence ; so a private sur-. vey, made ex parte, is inadmissi- ble, lb. 153. Copies of the official maps of the surveys. of the lands in this state, deposited in the surveyor- general's office, are the best evi- dence of the extent, character, and boundaries of such surveys, and therefore parol evidence that a prif vate survey conforms to such offi- cial survey, without, producing the copy of the official survey, is im- proper, lb. 154. On the trial of a prisoner for alleged forgery of auditor's war- rants, besides the proof of the hand- writing of the prisoner, there being no positive proof of the forged war- rants having been seen in the pos- session' of, or uttered by the prison- er, the state proved that he was the clerk of the auditor, had official custody of his books, free access at all times to the registry, and that the forged warrants, in all ma- terial -respects, corresponded with the genuine ones in the register; upon which the prisoner proposed to prove that the registry was not always, or generally, in his custo- dy, but was carelessly thrown about the office, accessible to all who might casually enter it, and often, with the auditor's office itself, for a considerable time in the care of a single servant ; held, that the tes- timony offered by the prisoner was proper rebutting testimony, and should have been admitted. Pa- gaud V. The State, 5 S. & M. 491. 155. In an action by the sheriff to recover the price bid for real estate at its sale, the return on the execution is evidence for him, but his memorandum -books would not be. Hand v. Grant, 5 S. & M. 508. 156. D. being indicted and on trial for the murder of a slave, and it being proved, that D. was acting in the capacity of overseer for B., a witness was permitted, though ob- jected to by the prisoner, to testify on the part of the state, as to the prisoner's general habit, as over- seer, in punishing slaves on the plantation of the owner of the slave killed ; held, that the - evidence was inadmissible, being calculated EVIDENCE. 211 to prejudice the jury against the prisoner, and not being responsive to any charge made. Doieling v. The State, 5 S. & M. 664. 157. See Judgment, 123 ; a de- cree in chancery, without the pre- vious proceedings, is inadmissible in evidence. 158. Where the defendant filed a bill of discovery against the plain- tiff, requiring him to state whether or not certain alleged payments had been made on the note in suit, and the petition was neither answered nor taken for confessed, the de- fendant had a right to abandon the petition, and introduce a witness to prove the payments ; especially where it appears that the evidence has come to the party's knowledge siac^ the petition was filed. Foster v. Pinckard, 5, S. & M. 792. 159. Where a defence is based upon the provisions of a statute of another state, in order to make the defence available the statute must be produced, and proved. Hemp- Mil V. The Bank of Alabama, 6 S. & M. 44. ^ 160. See Sherii[, 53; the ad- vertisements of his sale, though signed by his deputy, are evidence against the sheriff, in an action by the publisher of a newspaper against the sheriff, for the costs of such ad- vertisements in the publisher's pa- fer. ' 161. Where, in an action bya bank to recover the amount of a note payable to itself, the defend- ant proved that he had delivered to his counsel, to use in evidence, the receipt of the bank for a certain amount of cotton, and that the re- ceipt had been lost, and offered to prove its contents; held, that a sufficient foundation for the second- ary evidence had been laid, and it ^ should be admitted ; and held, fur- ther, that the delivery of the cot- ton, in payment of the debt, ihight . have been established by any other proof, without producing, or ac- counting for the receipt. Smithy. The Mississippi and Alabama Rail- road Co. 6 S. & M. 179. 162. See Partner, 28. Evi- dence from circumstances, to estab- lish partnership, ought to be admit- ted, where it is denied under oath. 163. Where articles of partner- ship, are lost, though they refer to a tract of land, parol evidence of ^ their contents is admissible. Per- ry V. Randolph, 6 S. & M. 335. 164. D. &Z, R. being partners in a race-course, D. sold out his in- terest to G., who assumed to pay D.'s share of the delfts due on ac- count of the course ; in an action against D. & E. by P., for work done on the course, held, that G. was an incompetent witness to prove payment by D. to P., for the work done by P. and for the value of which he was suing; lb. 165. See Agent, 13 ; where a defendant, sued as principal, on a note made by an agent^. permits the note to be read, without objec- tion, to the jury, (though he has de- nied the agency under oath) he thereby admits the, due execution of the note by the agent, within the scope of the agency. 166. See Contract, 59 ; when a bank sues on a contract for a loan on which the defendant has paid cotton, to be shipped to Liverpool, what evidence of the value of the cotton is admissible, and what of the depreciation of the bank's notes. 167. No tribunal has authority to take proof, except in a case be- fore it, or by authority expressly conferred by commission, or by statute. Merrill v. Bell, 6 S. & M. 730. 212 EVIDENCE. 168. If the answer of a defend- ant to a bill in chancery be made a cross-bill ; the answers of the original complainant to the inter- rogatories propounded in the cross- bill are good evidence in favor of the -complainant. Money v. Dor- sey, 7 S. & M. 15. 169. Where, on an application to the probate court to remove an ex- ecutor for maladministration, oral testimony was given, but not taken down at the time, the executor Ijshaving time given him until the next term to reduce it to writing ; and after the decision of the court removing the executor, he had the witnesses re-examined before a jus- tice of the peace, and their testi- mony taken down, and the clerk of the circuit court certifies to the correctness of ' the transcript of the evidence ; held, that the high court of errors and appeals could not notice the testimony ; it was irregular to re-examine the wit- nesses after the trial ; the evidence under the statute should have been taken down and recorded at the time. Ross v. Mims, 7 S. & M. 121. 170. Where the validity of the certificate of a state ofiicer is called in question, its conformity to law is a question of law for the courts be- ing regulated by a public law of the state ; but the conformity of the certificate of a foreign officer to the foreign law, is a question of fact-, to be established by evidence. Sessions v. Reynolds, 7 S. & M. 130. 171. Where -a certificate of a foreign ofiicer is made, the certifi- cate is prima facie evidence of its conformity to law ; and it devolve^ on him Who questions its admissi- bility, to show that it is not in the usual form, to do which he must produce an authenticated copy of the foreign law, or, if that cannot be had, the best 'evidence which the nature of the case admits of. lb. .172. Where the court below re- jects proof of a particular fact, which fact can only be established in a particular way, the record must show that the proof rejected was pertinent to the establishment Of the fact in that particular way ; where, therefore, the bill of exceptions re- cited that " the defendant offered to prove" that the certificate of the foreign officer was not in due form, w'ithout showing how, or by what proof, and the C9urt below rejected the proof, held, that the high court would presume it was correctly re- jected, lb. ■ 173. The duly authenticated copy of a plat and survey of lands con- tained in a confirmation of a Span- ish grant, from the office of the sur- veyor-general of lands, south of Tennessee, is evidence under the statute, nor will the fact, that in the certificate of authentication the sur- veyor-general puts no date, make any difference ; he certifies as sur- veyor-general, and the presumption is, the certificate is true, until the contrary is shown ; nor will the fact that the copy of such survey, from the surveyor-general's office, differs materially from the map of the same land in the register's officer- exclude the former from testimo- ny ; both copies are testimony un- der the statute, and of equally high grade ; the mistakes in the maps can only be corrected by actual surveys. lb. ..174; Under the statute of this state, which declares " that where the parties or witnesses tO a deed reside in a foreign kingdom, &e. the acknowledgment or proof made befijre any court of law, or mayor, EVIDENCE. 213 &c. certified by the same court, mayor, &c., in the manner such acts are usually authenticated by him or them, shall be sufficient, &c. C an acknowledgment to a deed, purporting to have been taken before the mayor.of Liverpool, and to be his official certificate, and which bears the corporate seal, but which is not signed by that officer, but by the town clerk, is sufficient ; the rule being that the certificate of a foreign officer is prima facie in due form, or in the usual form of authentication, but not conclu- sive, lb. 175. It is a principle of evidence, that where two writings refer to each other, with a view to the con- struction of either, being cotem- poraneous and kindred in respect to subject-matter, they are deemed one instrument, when the contro' versy is between the original par- ties, or their representatives ; where, therefore, a deed, . conveying the absolute&e'in real estate, was exe- cuted, and at the same time the grantee executed a paper, reciting that he received the property char- ged with the settlement of the just debts of the grantor ; held, that the latter ptper was correctly admitted in evidence, in an action of eject- ment by the grantee of the deed, against the widow of the grantor, to show that the grantee had but a trust in the property, and that the widow was entitled to dower there- in. Caillaret v. Bernard, 7 S. dzi M. 316. e. Notarial Certificates and Evi- dence'. 176. The memoranda of a de- ceased notary, of' the protest and notice to the indorsers of a promis sory note, though not made out ac- cor.ding to the statute, are evidence of the protest and notice before the jury ; nor will their validity be af- fected, if they are not entirely in his handwritmg, if signed by him. Barnard v. Planters Bank, 4 How. 98 ; Bodley v. Scarborough, 5 How. 729. 177. The construction of memo- randa of a deceased notary, is for the jury ; where a notary had therefore written the word " of- fice " on his record, opposite the indorser's name, and underneath added that the notices were duly served on the proper day, by nine o^olock in the morning, according to the designation specified above, and the jury foundfor the plaintiff; held, that there wag sufficient to up- hold the verdict, as by office might have been meant the indorser's office, which he was proved to have had in the city, where the note was protested. lb. 4 How. 98. : 178. ■ See Bills of Exchange and Promissory Notes, 65. What no- tarial records are evidence. 179. A notarial record sworn to by the notary, to the best of his knowledge and belief, is sufficiently verified to be evidence under the statute. Harris v. Heberton, 5 How. 575. 180. See Bills of Exchange and Promissory Notes, 65 ; for im- peachment of notary's certificate, by inquiry as to particular facts. , 181. See Bills of Exchange and Promissory Notes, 127. Con- struction of notary's memoranda is for jury ; and his clerk cannot tes- tify what notary intended. 182. In an action against the in- dorser of a note, the notary's depo- sition was read, by the plaintiff, to prove the protest and notice ; and the defendant read another deposi- tion of the same notary, taken a year previous, about the same note, 214 EVIDENCE. in which last deposition he differed in his statements from those in the other, about the mode of giving no- tice ; when the plaintiff proved that when his first deposition was giveh his notarial books were lost, and the notary testified, from recollection, when the second was taken they were found, and the notary had re- freshed his memory from them ; held, that it was competent for the defendant, by way of rebutting this proof, to prove the notary's general habit, in keeping his notarial xe- €ord, and that he weis in the habit of leaving his memoranda of notices of protest, in, blank, to be filled up afterwards. Seltzer v. Fuller, 6 S.&M. 185. f. Parol Evidence, when admissi- ble to vary or explain wri- ting, 4*c. 183. Parol evidence is not^d- f fnisgible to show a mistake in the Quantity of acres mentioned Ln a i, deed where no fraud is proved ; ' a coiiffact lcannOTrest~part^Tn pa- rol and partly in writing ; the parol is extinguished by the writing ; ar- ticles of agreement consummated by a deed, a,re merged in it, and become a nullity ; nor can a differ- ent consideration from that stated in a deed be- established by parol. Kerr v. Calvit, Walk. 115. 184. 'Where a person buying a claim, which the parties suppose -to contain four hundred acres, and for which he agrees to pay ten dollars per acre, for that number of acres, yet receives a deed calling for only twoTEindred and fifty acres,^ more or less, he cannot set up a failure of consideration when sued for the purchase-money, by proving ^^by parol the purch ase of the four ~- — "^ HuiiQrid acres, if there was_ no fraud on the part of the vendor. lb. 185. In an action on an injunc- tion bond to enjoin a judgment at "law, which bond recited that " whereas, at a circuit court of law held in and for the county pf Wil- kinson, on the first Monday; in No- vember, 1822, the above-named C. H. . . . and whereas the said S. G. hath prayed for, and obtained an injunction to stay the proceed- ings upon said jiidgment at laiw, until, &c.'' it was held, that the i bond was void for uncertainty, and ^ that it was incompetent for the -, plaintiff to show, by parol, that the '\ judgment at law referred to, was one in favor of J. D. for the use of C; H. against said S. G., at the ' May term, 1820, of said court. Gildart v. Howell, 1 How. 198. .186. The grantor, in a bill of sale, may be permitted to explain the nature of the bill of sale, where t^ere is an ambiguity in it^ and to show that he is a mere trustee with limited power to sell. Berry v. Hale, 1 How. 315. a 187. F. conveyed laad to C, and described it .thus : namely, " containing two hundred and forty acres in the coimty.of W. on'tKe B. S. waters ; bounded on the north by the . lands of R. f)., east by lands of said F., south by lands of said C, and west ty the west branch of B. S. creek." Htild', that it was incompetent for F. to show, by parol, that he only de^ signed ~to convey to C. a certain tract of one hundred and fifty-three acres, whlch~tract of one hundred and fifty-three acres C. had admit- ted, in conversations, was what_ "Bought, but which did not, in, metes and bounds, answel* the description called for in the deed, nor in^ itg~"amount. ' Carmic.ll&ll~T.'~Foley, 1 How. 691. 188. To allow the introduction EYIDENCE. 215 of parol testimony to explain a written grant, on the ground of a latent ambiguity, there, must be two subjects to which the description in the -grant will equally apply ; it will never be permitted to defeat a more material and applicable Ue- scription. In favor of oiie neitherso' material nor applicable to the grant ; parol evidence is never ad- / missible, wljere the deed can have ' an effective operation without it. lb- 189. Parol evidepce cannot be admitted of a sale by an adminis- trator, even though offered by such administrator ; the deed must be produced. Randolph v. Doss^ 3 How. 205. 190. , Where a bill of sale is given for two negroes, with war- ranty, and an action is brought on an alleged breach of the war- ranty as to one, it is competent to show, by parol, the price agreed on at the time of sa,le for each ne- gro, though the bill of sale specify a single sum as the price of the two. Tutt V. McLeod, 3 How. 223. 191. It is improper to prove by oral testimony the existence of a patent ; if the officer who has pos- session of it refuse to deliver it, a subpoena duces tecum should have been applied for. Wooldridge v. Wilkins, 3 How. 360. 192. The survey of the land is to be taken as part of the patent, and may be resorted to to control the calls of the patent; and if the survey show an artificial or natural boundary that can be well ascer- tained by marked trees or other- wise,, it will prevail, and parol evi- dence is admissible to establish it, evep though it vary from the course or distance called for, it will never- < < • theless be taken as the true boun- dary ; yet all lines on the survey are not conclusive evidence that the line was run ; therefore where a dotted line occurred in ai survey, it was held competent^ to show, by parol, that the line never was actually run, and that surveyors used dotted lines to indicate lines that ■, were never ritn. Newman v. Foster, 3 How. 383. ! 193. Where there had been a sale of real estate by the plaintiff to the defendants, and partial pay- ments made, and the contract after- wards I'escinded, and a short mem- orandum thereof made, in which nothing was said about the money paid, it was held, in a suit op a note given to the plaintiff as part of the compromise, to which the de- fendant plead as an offset the money paid on the landi, that it was com- petent for the plaintiff to ^how, by parol, that iij the compromise it was agreed that that money should not be recovered back ; and the ad- mission of the defendant to that ef- fect, would be evidence against him. Clarh v. Perry f A How. 285. 194. It seems parol evidence is admissible to show an absolute bill of sale to be a mortgage ; and also to show an extension of time to re- deem in, and an increase of the mortgage debt. Kent v. Allhritain, 4 How. 317. 195. A receipt may be explain* [ ed, and even contradicted, by parol proof; where, therefore, a sheriff gave a receipt for the debt to the defendant, in the execution, it was held competent to show by parol what kind of funds was paid, or that no money at all was paid. Gasquet v. Warren,2 S. & M. 514. 196. See Chancery, 5 ; a written instrument, where from mistake or fraud it does not truly show the in- tent of the parties, may be ex- 216 EVIDENCE. plained by parol and the true intent shown, in equity.J IQT. The rale. of law that parol testimony cannot be heard to vary written agreements, has never been carried so far as to defeat the right to, prove a failure of consideration." Buckels V. Cunningham, Q S. &M. 358. 198. Where a bond was payable on its, face to B., it seems it is a matter of doiibt whether it would be admissible in a court of law to prove that the obligation: did not originally belong to B., but to a bank. Lanier v. Triggi 6 S. & M. 641. 199. ,The parol declarations of the grantor in a deed^ that'h^ had previously, by deed, conveyed away the same property, are inadmissible in evidence, in a suit by the grantee in the last deed against the alleged grantee in the first ; • the deed must be producted, or if lost, its existence established. Harmon v. James, 7 S. &M. 111. 200. Where A. draws a bill on B., in favor "of C, and B. accept the bill in writing, and is sued upon it, he cannot show by parol evi- dence that the acceptance of the bill was given to D. to be obligatory upon condition that A. finished a job of work that he had undertaken for B. Heaverin v. Donnell, 7 S. «fe M. 244. , , 201. In an action on a note given for land, in which the defendant of- fered proof of want, of title in the plaintiff to the land, it is not com- petent for the plaintiff to show by parol that there was a mistake in the description of the land in the title bond, and that the defendant was really put into possession of the land sold, and had been ever since in possession ; vsuch proof may be made in a court of equity, not of law. Peques v. Mosby, 7 S. & M. 340. ' 202. Parol evidence to suj^ljr omissioH~in the description oTTand in a deed which vrould be otherwise voidlOT^ncertaipty, is inadmissible. IVilkinsonv. Davis, Freem. Ch. 53; 203. Parol evidence to explain, or vary the terms of written instru- ments is received 'with great cau- tion and distrust, yet such evidence is admissible to explain mistakes in a deed, and it seems it is adims- sible to ^ show by parol that a deed of trust to secure judgments against H., was not also intended to secure judgments against H. & P. Lau- derdale V. Halloek, 7 S. & M. 622. g. Witness ; who competent,' and what disqualifies. 204. A prosecutor in an indict- ment is a competent witness for the state upon the tri^l, though liable for costs in the event the prosecu- tion fail, if it appear to be frivolous or malicious. The State v. Bleh- nerhassett. Walk. 7. 205. Nothiiig but infamy of char- acter, or an absolute and direct in- terest in the event of the suit, or the admissibility of the verdict and judgment, in the suit in which he is to testify, against him in some future trial, will disqualify a witness. ■ lb. 206. Where two defendants are tried , together, on indictments for the same assault and battery, one of the defendants is not a good wit- ness for the other upon the trial, unless no proof of guUt be offered against the defendant proposed as a witness. lb. 207. The interest which renders .a witness incompetent must be di- rect and- positive, and in the event of the suit ; if he believe he is in- terested in it, that belief disqualifies him though the fact be otherw^ise, EVIDENCE. 217 unless he believe his interest merely one of honor; if the verdict may be used against him in other suits, he is incompetent though called to testify against his interest ; so, if insane, an idiot, a lunatic, an atheist, a disbeliever in rewards and pun- ishments hereafter, convicted of an infamous offence, or interested in the event of the suit. Phebe v. Prince, Walk. 131. 208. A plaintiff cannot be a vi'it- ness to sustain his accounts by his own book of accounts. West v. Poindexler, Walk. 303. 209. See Partners, 2 ; as to whether one partner can ever be a witness for the other in partnership matters. 210. See Executor and Admin- istrator, 20 ; as to how far witness may be compelled to testify, though he subject himself to civil suit thereby. 211. A member of an incorpo- ration who will be liable to pay his share of the costs of a suit brought by the company, is not a competent witness for the company; but where there has been a sum apparently sufficient to cover costs deposited, and he has executed a release of his interest, his liability to pay his portion of any further costs that might accrue, is too re- mote to disqualify him, and he will be competent. Smith v. Natchez Steamboat Co. 1 How. 479. 212. A trustee who is also one of the cestui que trusts in a deed, can- not become a competent witness for his co-trustee by releasing his in- terest under the deed and his office as trustee ; he cannot renounce the latter without the assent of the beneficiaries in the deed, or the permission of a court of equity. Ferriday v. Selser, 4 How. 506. 213. The drawee who has re- 19 fused to accept the bill is a compe- tent witness for either party in aa action on the bill against the other parties ; and where he was present in court ready to testify, evidence aliunde of his statements would not be competent. Carmichael v. Bank of Pennsylvania, 4 How, 567. 214. A mere interest in the question involved in the suit will not render a witness incompetent ; therefore in an action to try the right of property to a slave levied on by attachment, a plaintiff in an- other attachment suit involviiig the title to the same slave will not be an incompetent witness for the plaintiff in the first suit ; 215. Nor will he be rendered incompetent by reason of an agree- ment on the part of the counsel for him in his suit, that his suit should abide the issue of the one he was to testify in ; as such agree- ment would not be binding on him. Clapp V. Mandeville, 5 How. 197. 216. If a witness, by his own voluntary act or by the procurement of the party who objects to him, has acquired an interest in the verdict after the event, he is called to prove, has happened, the other party shall not for that reason be deprived of his evidence, lb. 217. In an action on a note against the makers and indorsers under the act of 1837, one of the makers is not a competent witness to prove that time had been given to the makers so that the indorser was released, nor to prove that a new note had been given in pay- ment of the note sued on. Wade v. Staunton, 5 How. 631. 218. A distributee is an incom- petent witness to establish a sale by which the distributive fund will be increased ; nor will that interest be counterpoised by the fact that such' 218 EVIDENCE. distributee was the vendor in the sale, and if the sale were not es- tablished, the property sold would be subject to the payment of the vendor's debt. Carter v. Graves, 6 How. 9. 219. The master is a competent witness for his slave in a state pro- secution. Isliam v. The State, 6 How. 35. 220. It seems that all persons not interested in the event of the suit, nor incapicitated by his religi- ous tenets, nor by the conviction of an infamous crime, are competent witnesses ; other circumstances on- ly affect their credit ; the maker of a note, therefore, against whom a judgment has been rendered is a competent witness, when the indor- ser is sued, to prove a payment. Routh v. Helm, 6 How. 127. 221. See Bills of Exchange and Promissory Notes, 1 14 ; whether a joint maker of a note is a com- petent witness for his co-maker. 222. A witness is not incompe- tent when his interest is against the party calling him. Morton v. Jack- son, 1 S. & M. 494 ; much less is he so if the party calling him offer to release the interest. Englehard V. Slater, 7 How. -538. 223. An agent as a general rule is not only competent to establish a parol authority, but also to prove the contract ; a witness, therefore, who, on his voir dire, stated that he was not interested ip the event of the suit, that he did not know whe- ther, if the plaintiff succeeded, he •should be liable for the amount re- covered or not, that he had acted as agent for the defendant, was held a competent witness ; interest only disqualifies an agent. Austim v. Feamster, 1 S. & M. 166. 224. The surety in an attach- ment bond is a competent witness for the plaintiff in attachment, upon the trial of an issue taken on the answer of the garnishees of the de- fendant in the attachment. Peters v. Moss, 1 S. & M. 331. 225. An attorney at law, who made an assignment of a judgment belonging to his client for whom he was under acceptances to be paid out of moneys that he might collect, is a competent witness to prove the circumstances under which he as- sented to the assignment and to tes- tify generally with reference to it. Clarke v. Kingsland, 1 S. &; M. 248. 226. The grantor in a deed un- der whom the lessor of the plaintiff claims, is a competent witness for the defendant in the ejectment to show what was meant by a descriptive word in the deed, or to explain any doubt or ambiguity connected with the description of the boundary ; where, therefore, land was in part described as " designated more par- ticularly on the map of said town, as ' swamp land,' " it was held, there being no land designated on the map as swamp land, it was compe- tent to show by the grantor in the deed what was intended by that phrase. Morton v. Jackson, 1 S. & M. 494. 227. In the trial of the right of property levied on under execution, the sureties in the claimant's bond are incompetent witnesses in his behalf ; but the claimant has a right to substitute new sureties so as to discharge the old ; and it will be error to refuse it ; but if such sure- ties are disqualified from other causes, it will not be error to refuse the change. lb. 228. Where a suit was brought in the name of one for the use of another, the nominal plaintiff, when his testimony is against himself, is EVIDENCE. 219 a competent witness though object- ed to by the usee if he do not him- self object to testify. Smith v. El- der, 7 S. & M. 507. 229. In a controversy between two sureties on a note for contribu- tion, the principal being equally li- able to both, stands indifferently be- tween them and is a competent witness. Hunt v. Chambliss, 7 S. & M. 532. 230. Where a party holding a bond for title to land assigns it to another without any covenant on his part, and the same land is sold under an execution against the as- signor of the bond, in a controver- sy between the assignee of the bond and the purchaser at the sale under the execution, the assignor of the bond is an incompetent witness to prove that he assigned the bond without any consideration and in fraud of his creditors. Ellis v. Ward, 7 S. & M. 651. 231. An administrator who is al- so the son of his intestate is not a competent witness to prove that his intestate did not execute a note up- on which it was attempted to ren- der him liable ; nor is an adminis- trator who revives a suit of a de- ceased complainant a competent witness on behalf of his intestate, because he is liable for costs. M'- Intyre v. Ledyard, 1 S. & M. Ch. 91. 232. A defendant charged with colluding with his co-defendant in regard to the transaction sought to be impeached cannpt be a witness for his co-defendant, especially where he is liable for costs. Pope v. Andrews, 1 S. & M. Ch. 135. 233. In a joint action against makers and indorsers of a note one indorser is not a competent witness for another indorser sued in the same case, being liable for costs. Scott V. Walkins, 2 S. & M. 233. 234. A partner is not a compe- tent witness for his co-partner un- less they mutually execute general releases to and from each other ; therefore the drawer of a bill is not a competent witness for the accep- tor when it appears that the drawer was a partner of the acceptor in the bill sued on, even though the acceptor execute to him a release of interest. Scott v. Watkins, 2 S. & M. 255. 235. Since the act of 1829 In- dians are competent witnesses in any case where a white man would be. Harris v. Neieman, 3 S. & M. 565 ; Coleman v. Tishomah, 4 S. & M. 40. 236. In a suit against some of the members of an unincorporated bank- ing company, one of the members of that company, who had been so from the commencement, is a com- petent witness for the plaintiff in the suit. Lake v. Munford, 4 S. & M. 312. 237. In the trial of the right of property in slaves levied on under execution where the claimant is a feme covert, her husband is not a competent witness to testify in her behalf. Moore v. M'Kie, 5 S. & M. 238. 238. A father who has made a deed of gift of slaves to his daugh- ter, with warranty for the considera- tion of love and affection and of ten dollars cash paid, is a competent wit- ness in her behalf in a trial of right of property between the plaintiff in an execution against her husband who had levied on the slaves, and the daughter who was claiming them ; for, though as a general rule the grantor or vendor with warran- ty is an incompetent witness for the grantee or vendee, yet it may be shewn by parol that the pecuniary 220 EXECUTION. consideration Expressed in the deed was merely nominal and that it was actually a deed of gift. lb. 239. A vendor of land who has taken a deed of trust to secure him- self the purchase-money, is not a competent witness for the vendee when the sale is attacked as fraudu- lent, to prove its fairness, or to tes- tify in relation to it, he being di- rectly interested in upholding the sale in order to enforce payment of the notes_ secured by the deed of trust."* lb. 240. As a general rule, an agent is a competent witness for, as well as against his principal ; but where a judgment in favor of the party calling him will procure a direct benefit to himself he is incompe- tent. Poindexter v. La Roche, 7 S. & M. 699. 241. L. filed a bill against P. to foreclose a mortgage ; P. answered that he had paid the debt secured by the mortgage, to W. the agent of L., and to whom, as agent, the mortgage was executed and the notes secured by it given ; L. of- fered to prove by W. that the mo- ney paid by P. to him had been applied by W., without consulting P. to the payment of a debt which P., owed W. in his own right, and not to the payment of the debt se- cured by the mortgage ; held, that W. was an incompetent witness in relation to his individual transaction with P., as he would Jby his testi- mony secure the payment of his own demand, and release himself from liability to his principal by charging P. lb. EXECUTION. See Forthcoming Bond, Sheriff, Judgment — passim. 1 . An execution on a judgment, the defendant in which has died since its rendition, which issues after the death of the defendant, against his administrator without revival by scire facias, and after the lapse of a year and a day from the rendition of the judgment against the intestate, is irregular. Hicks v. Murphy, 'W3.\k. 66 ; Hubert v. Wil- liams, lb. 175. 2. Such irregularity cannot be taken advantage of by writ of er- ror, but only by motion or writ of audita querela in the court below, unless the execution has issued by order of such inferior court. lb. 3. An execution cannot issue, after his death, against the effects of a deceased person, before a re- vival of the judgment against his legal representatives. Wilson v. Kirkland, Walk. 155 ; if the ex- ecution bear teste after the death of the defendant, and before revival, it will be quashed on motion ; and if one execution issue, and defendant die before levy, and the execution is returned, a revival of the judg- ment is necessary before another can issue ; and if one out of sev- eral defendants die before execu- tion is issued, it must be issued against all ; but can be levied only on the properly of the survivors. Davis V. Helm, 3 S. & M. 17 ; but it seems a sale under execution against a dead man, would be void- able only. Smith v. Winston, 2 How. 601 ; Drake v. Collins, 5 How. 253. 4. The mortgagor's, but not mort- gagee's interest in land and slaves subject to sale under execution in this state. Hunter v. Hunter, Walk. 194; but the right of the grantor in a deed of trust of per- sonal property is not ; and it seems equities and rights to redeem are \- EXECUTION. 221 not at common law, and are not made so by our statute. Thornhill V. Gilmer, 4 S. & M. 153. 5. On a judgment revived by scire facias, the execution should issue on the original judgment. Easlin v. Vandorn, Walk. 214. 6. See Forthcoming Bond, 2 ; as to quashing execution on, be- cause of the omission to make money out of levy on original judgment. 7. Sale under execution does not divest dower. Fleeson v. Nich- olson, Walk. 247. 8. Payment to the clerk of the court is no satisfaction of the judg- ment or execution. Lewis v. John- son, Walk. 260. 9. See Arlitration, 1 ; as to is- suance of execution on award. 10. See Trustees of Poor, 1 ; as to -power of legislature to stay execution. 11. An injunction does not de- stroy the lien of the judgment en- joined ; ijor will a sale on the junior judgment, pending the injunction, affect the lien of the elder judg- ment. Lynn v. Gridley, Walk. 548. 12. See Forthcoming Bond, 5; as to quashing execution on, for de- fects in bond. 1 3. See Forthcoming Bond, 6 ; for objections to executions on original judgment, after forfeit- ure. 14. Execution no part of record unless embodied in bill of excep- tions. Davis V. Baldwin, 1 How. 550. 15. See Executor and Adminis- trator, 210, and Scire Facias, 4; as to when sale under execution without revival, and the duty of re- vival. 16. See Judgment, 39, and Scire Facias, 9 ; as to duty to revive 19* judgment ; and sale under without revival, how far void. 17. See Sheriff, 13, 14 ; as to power of court to set aside sale under execution, arid how far sale vitiated by quashal of execution, or its being satisfied before sale. 18. Executions are presumed in law to be continued on the roll ; where one has issued therefore in the proper time no scire facias is necessary to revive. McCoy v. Nichols, 4 How. 31. 19. Where a decree was ren- dered in favor of F. against B., C, D. and E., the heirs of A., for the payment of money to be levied by execution, out of the property of A., and an execution issued com- manding the sheriff to make the money out of the goods and chat- tels, lands, &c., of B.^ C, D. and E., or of the goods and chattels, lands and tenements of which A. died seized, and lands of A. were sold and bought by F. ; held, that the variance between the decree and the execution was a mere cler- ical mistake, and did not vitiate the sale urfder it. Starke v. Gildarl, 4 How. 267. 20. A judgment having been rendered in favor of a bank suing for the use of A., against B., the sheriff received the notes of the bank in payment of the execution by mistake, supposing the judgment belonged to the bank, and gave the defendant a receipt accordingly ; detecting his mistake, he made a special return of the facts ; held that the payment was not a satis- faction of the execution, and that the right of the usee to specie would be upheld. Catlett v. Alex- ander, 4 How. 404. 21. On a judgment against two, the execution must be against two ; where therefore a surety on a forth- . 222 EXECUTION. corning bond supposes he is dis- charged by indulgence granted the principal, his remedy is not by mo- tion to quash an execution against him on the bond. Newell v. Hamer, 4 How. 684. 22. See Evidence, 102 ; in case of lost execution. 23. Where an execution has is- sued within a year and a day after judgment, and is not satigfied, the plaintiff therein may take out his execution at any time afterwards without scire facias and without formal continuance entered, from term to term ; such continuances are never entered now, the law pre- sumes them to be entered ; where therefore a judgment was rendered and execution issued on it on the 27th of September, 1834, ajid no other execution issued until the 29th of June, 1889, the last execu- tion was held to be regular. Bank of Mississippi v. CaUett, 5 How. 175. 24. After the return term of an execution, the sheriff has no right to receive money from the defend- ant on it, and such receipt will not bind the plaintiff; and the court can, without the intervention of a jury, set aside the return of a sher- iff made on execution ; and will, on motion, inquire into and correct the conduct of its officers according to the right of the case. Planter''s Bank v. Scott, 5 How. 246 ; An- derson v. Carlisle, 7 How. 408 ; Wood V. Robinson,3 S. & ]\I. 271. Nor will the fact that the sheriff is special agent of the plaintiff in the execution make any difference, McFarland v. Wilson, 2 S. & M. 269. And a sale of real estate under execution after its return day is void. Lehr v, Rogers, 3 S. & M. 468. 25. An agreewient between the sheriff and defendant in an execu- tion, for the payment of that exe- cution in bank money or any thing else than the legal currency, will not satisfy the judgment, lb. ; and if an execution be paid in uncur- rent bank notes, when the sheriff and defendant both knew that spe- cie would be demanded, and the sheriff return the execution satis- fied, his return will be set aside as false. 7 How. 408; Morton v. Walker, 7 How. 554 ; Gasquet v. Warren, 2 S. & M. 514; Woody. Robinson, 3 S. & M. 271 ; Anke- tell v. Torrey, 7 S. & M. 467. 26. Where the sheriff returns upon an execution that he adver- tised the sale according to law, it will be presumed that the requisites of the law were complied with. Drake v. Collins, 5 How. 253. 27. The return of the sheriff on an execution of " no property found," is not prima facie eviience that the execution was returned on the return day ; the return of the execution is a matter in pais to be shosyn by parol. Izod v, Addi- son, 5 How. 432. 28. Where a plaintiff and de- fendant in execution agreed in con- sideration of a release of errors by the defendant, that the plaintiff would stay his execution for a year unless the defendant consented for its earlier issuance, and the execu- tion did issue immediately without any stay at all, and money was inade on it and other executions op junior judgments, hgld that the lien of the elder judgment was not lost by the agreement, as the acquies- cence" of the defendant would be presumed, and that being the eldest judgment it would be entitled to the money. Jones v. Bailey, 5 How. 564. 29. See Variance, 6 ; omission EXECUTION. 223 of the word bank, in an execution on a judgment in favor of the Pres- ident, Directors and Company of the Planter's Bank, is immaterial. 30. A sheriff's return on execu- tion that he had received so much money " in bills of the JMississippi Union Bank " is not a satisfaction of the judgment. Tult v. Fulgham, 5 How. 621 ; Anderson v. Carlisle, 7 How. 408; Morton v. Walker, 7 How,- 554. 31. After a levy of execution and benefit of the valuation law claimed, and a return of no sale because the property did not bring two-thirds of the valuation, an alias execution cannot issue until the ex- piration of the twelve months, at which time, by law, the valuation expires ; two operative executions cannot be predicated on the same judgment at the same time. Mc- Gehe v. Hundley, 5 How. 625. 32. A levy oa sufficient perso- nalty is a satisfaction of the execu- tion to the extent of the levy ; and a levy on sufficient real estate is so far an execution of the judgment as to postpone the right to a second writ. lb. It is only prima facie satisfaction, which may be rebutted. Kershaw v. The Merchants Bank of New York, 7 How. 386 ; Bihh v. Jones, 7 How. 397; Pickens v. Marlow, 2 S. & M. 428. Walker V. McDowell, 4 S. & M. 118, 33. Where money is made on an execution on a junior judgment, an execution on a senior judgment not levied, will not be entitled to the money. The oldest execution lev- ied will take it. Robinsonrv. Green, 6 How. 223. 34. Where the endorser of a note on which judgment has been obtained, applies under the statute subjecting the property of the ma- ker first to execution, to protect his own property from execution by showing that of the principal, he must identify the property he points out in such a way as to enable the sheriff to make a levy on it ; in case of land, the precise sections and parts of sections must be des- ignated ; the township and range alone will not be sufficient Gib- son v. Hughes, 6 How. 315. 35. An execution on the original judgment, after forthcoming bond given by some of the parties to the original judgment, is a nullity. King V. Teri'y, 6 How. 513. Field V.Morse, 1 S. &; M. 347. 36. A sale under junior judg- ment will not pass the title divested from the lien of the senior judg- ment ; but in such case the junior judgment will be entitled to the money made on the sale. Com- mercial Bank of Manchester 'v. Coroner of Yazoo 'County, 6 How. 530 ; Commercial and Railroad Bank v. Helderburn, 6 How. 536 ; Goode V. May son, 6 How. 543 ; the rule will be the same whether the elder judgment be in the circuit court of the United States, or in the state courts. Andrews v. Wilkes, 6 How. 554 ; Bibb v. Jones, 7 How. 397. 37. A stay of execution which expired before the recovery of a judgment against the sa'me defend- ant subsequent to that on which the stayed execution issued, .does not affect the lien of the elder judg- ment as against such junior judg- ment. Foute V. Campbell, 7 How. 377. 38. It seems that as a general rule the mere failure to sue out an execution without any act of the plaintiff authorizing the delay, will not impair the lien of the judg- ment so as to let in junior incum- brances ; yet if the delay to sue 224 EXECUTION. out execution show an evident de- sign to protect the defendant's prop- erty against other creditors, or if the delay is continued until other cred- itors have enforced their executions by levy and sale, it would amount to fraud, if the delay were such as to justify that inference. A failure to sue out execution for two years, after repeated previous executions, and the payment of a large sum, is not evidence of fraudulent delay. lb. 39. Where there is a subsisting levy undisposed of, and an execu- tion afterward issue and be levied on property, and a sale take place to an innocent purchaser, his title it seems will be upheld ; such sub- sequent levy is not void ; the exe- cution might be quashed, but if the defendant omit to quash it, the sale will pass a good title. Bibb v. Jones, 7 How. 397. 40. Whether, where a sheriff levies on personal property and sells it for depreciated money, the levy is a satisfaction of the judg- ment, qucsre ? Where such sale after levy is made by the defendant with the consent of the sheriff, it is a release of the levy, and clearly no satisfaction of the judgment. Morton v. Walker, 7 How. 554. 41. The plaintiff in execution is entitled to the money made on exe- cution, as against his attorney who obtained the judgment, and all others who do not show a legal right to it. Dunn v. Newman, 7 How. 582. But a payment to an attorney will discharge the sheriff, unless positively prohibited by the client from paying it to the attor- ney. Bullet V. Jones, 7 How. 587. 42. An execution cannot be per- petually superseded or suspended for an error which preceded the judgment on which it was rendered, and when the judgment cannot be set aside upon motion merely ; as where a judgment is rendered on a forthcoming bond, and the defect complained of was in the making of the bond. Jones v. Stanton, 7 How. 601. 43. Property purchased on con- dition, where the condition has not been complied with, cannot be lev- ied on under execution. Mount v. Harris, 1 S. & M. 185. 44. A sheriff's return of satis- faction on an execution cannot be set aside as false, upon the motion of the plaintiff, without notice to either the defendant in the execu- tion or sheriff. Mann v. Nichols, 1 S. & M. 257. 45. See Forthcoming Bond, 32. An execution must follow the judg- ment as to parties, or it will not be sustained. 46. See Sheriff, 34 ; for his li- ability for failure to return exe- cution. '47. See Attorney at Law, 27 ; nothing but payment of money sa- tisfaction of execution ; attorney's own debt is not. 48. See Judgment, 94 ; valua- tion law does not lose or postpone lien of judgment, where a postpone- ment of sale takes place, in con- sequence of property not bringing two-thirds of its appraised value. 49. See Judgment, 95 ; junior judgment first levied will take pri- ority of senior in county where neither rendered, if no abstract of either be filed. 50. See Judgment, 102, 103 ; execution on affirmed judgment, must be issued by the circuit clerk against the parties who prosecute the writ of error and their sureties ; and execution on the original judg- ment may be issued against those EXECUTION. 225 who did not join in the writ of error. 51. At a sale under an execu- tion against several defendants, one of the defendants has as much right to and may as lawfully purchase as any other person. Robinson v. Parker, 3 S. &. M. 114. 52. Where two executions issue for the same debt against different defendants, a levy and sale under one extinguishes the other; and a motion to have satisfaction entered of it is the appropriate remedy, and an illegal appropriation by the sheriff of the money arising under such sale, to junior executions, will not deprive the defendant in the other execution, of his right to have it satisfied ; the plaintiff should see to tbe proper appropriation of the mmej ; yet it must appear affirma- tively that the property sold for enough to extinguish the execution against one before the other will be ordered to be extinguished. Plant- ers Bank V. Spencer, 3 S. & M. 305. 53. See Crop, 1, 2 ; growing crop not saleable under execution. 64. Executions being by statute returnable to the next term after their issuance, if fifteen days in- tervene between the date of the issuance and the first day of the term, if one issue more than fifteen days before the April term of the court, and he made returnable to October term, it will be void, and a sale under it in July, will also be void. Lehr v. Rogers, 3 S. & M. 468. 54. Upon a judgment against an executor and a return of nulla h.on,a, a scire facias cannot be sustained by the creditor against the heir to subject the r3al estate of the de- cedent. Foster V. Sumner, 3 S. & M. 606. 55. The plaintiff in execution is not bound to pursue his remedy on a claimant's bond given for the trial of right of property, levied on un- der his execution, in which he has obtained a verdict ; that bond is but cumulative security, and he may resort to his original judgment. Walker v. McDowell, 4 S. & M. 118. 56. Where a levy is made on personal property, and the judg- meftt on which the execution issued was afterwards taken to the high court of errors and appeals and the execution " superseded ; " and a judgment rendered in that court, affirming the judgment below, and giving judgment against principjal and surety in the writ of error bond ; held, that in view of the practice prevailing in this state of restoring property to the defendant in the execution where , a super- sedeas is obtained, the facts consti- tuted a removal of the levy ; but it is questionable whether a mere supersedeas of an execution is an amotion of a levy already made under it ; yet if the sheriff volun- tarily restore property levied on, to the defendant, it might impose liability on the sheriff, but would not restore the lien of the judgment. Ih. 57. The act of May, 1837, that requires an affidavit of the insol- vency of the maker, before the property of the indorser or surety could be reached, does not require a similar affidavit of the insolvency of the first indorser, before that of the second indorser can be pro- ceeded against ; and that part of the statute which provides that when the plaintiff has made affidavit of the maker's insolvency, he may proceed against the parties next liable and so on, is directory merely 226 EXECUTION. to the sheriff, and when a levy is made on the property of the second indorser, there being no return as to the first, the court above vifill presume the sheriff did his duty in making such levy when the ques- tion -Whether he did or not was not put in issue in the court be- low ; and in a motion against the sheriff to pay over money made on executions, according to their priority, and the oldest was against the defendant as second indorser, and the others against him as prin- cipal, it will be no defence to the sheriff, that the first indorser had property and the sheriff had failed to take the legal steps to make the money out of him though he was a defendant also in the oldest judg- ment. Hamblin v. Foster, 4 S. & M. 139. 58. See Evidence, 148 ; what variance between an execution and the description of it in pleadings, is immaterial. 59. See Surety, 21 ; surety may compel sheriff, by petition to cir- cuit court, to levy on property of the principal ; and need 'not make affidavit of suretyship where that fact appears of record. 60. The interest of the vendee in land, who has taken a bond for title on payment of the purchase- money and has paid the purchase- money, is subject to seizure and sale under an execution at law against him. Thompsons. Whealley, 5 S. & M. 499 ; Moody v. Farr, 6 S. & M. 100 ; but where the purchase money is not paid, it is not subject to saie under execution ; and the purchaser will acquire no right to the property, even though sold un- der a judgment for the purchase- money ; whether the purchaser is entitled to be substituted to the rights of the vendor to the extent of his bid at the sffle under the execution. Qucere ? Goodwin v. ] Anderson, 5 S. & M. 730. If the 1 purchaser at such sale, file a bill \ against the vendor, alleging the payment by the vendee before the sale under execution, and demand- ing a title ; and the vendor deny the payment and aver a delivery up of the title bond, and a can- celment of the sale before the sale under the execution, the purchaser / at the sheriff's sale must prove that the whole purchase-money / was paid, or his bill will be dis- ' missed. Moody v. Farr, 6 S. & M. 100. 61. The return on an execution in these words, " levied this and other^. fas. on lots four an3 five, in square one, south of main gl»et, Columbus, advertised and solo^the same, &c." is sufficiently descrip- tive of the premises sold. Hand V. Grant, 5 S. & M. 508. 62. See Vendor and Vendee, 25,\ 31 ; the interest of a vendor who i has given bond for title to land, j how far saleable under execution. 1 63. The consent of plaintiff to receive bank notes in satisfaction of an execution, may be express or implied, and all facts and cir- cumstances tending to show such consent are proper to go to the jury ; where, therefore, A. made a motion against a sheriff and his sureties to pay over money col- lected on an execution,' and the sheriff was permitted to prove that he collected the "notes of the Mis- sissippi Union Bank, and notified A.'s attorney of it, who expfSi^ed no disatisfaction thereat : that A. was in the habit of receiving from his agents and attorneys at law the same kind of funds ; that such notes constituted the circulating medium of the country at that time EXECUTION. 227 and were UHiformly received by clients ; that the money was re- ceived in December, 1839, and the motion was not made until Novem- ber, 1843 ; held, that evidence was proper to go before the jury, as tending to show the consent of the plaintiff to receive the bank notes in satisfaction of the execution, and verdict of the jury to that effect, would not be disturbed. Ankatell v. Torrey, 7 S. &: M. 467. ( 65. See Judgment, 139 ; interest of grantor in a deed of trust and : of cestui que trust not subject to '; seizure and sale under execution at, law. 66. See Judgment, 140 ; when levy, satisfaction of. 67. See Banks ; when pay- ment in bank notes satisfaction of ; See Vendor and Vendee ; in- terest of vendee who has bond for title not saleable under execution, yet if sold by vendor under execu- tion for the purchase-money, the title will pass to the purchaser. 68. Where an execution is re- turned satisfied, a purchaser from the defendant therein will hold the property free from the lien thereof, even though the return of satisfac- tion be afterwards set aside as fraud- ulent. ; the right of a lona fide pur- chaser could not be affected there- by. Sevier v. Ross, Freem. Ch. 519 ; Parks v. Person, I S. & M. Ch. 76 : aliter, if the false return is made after the sale of defend- ant's property. Ih. ' 69. An equity of redemption in personal property is not subject to seizure and sale under an execution at law, on a judgment on the mort- \ gage debt. Valentine v. Planters Bank, Freem. Ch. 727. 70. It is wholly irregular to set aside a return^of satisfaction upon an execution- in a court of law without notice at least to the defen- \ dant in the execution ; such a pro- \ ceeding is absolutely void. Whe- ther, where the vacating the return upon the execution will affect the rights of subsequent purchasers from the defendant in the execu- tion, they are entitled to notice of the proceedings, quare ? Parks v. Person, 1 S. & M. Ch. 76. EXECUTOR AND ADMINIS- TRATOR. a. Executor and Administrator gen- erally ; and herein of allowance to them ; presentation of claims to save the bar of the statute ; and other matters not embraced in the succeeding titles. b. Accounts of Executors and Ad- ministrators. c. Who may administer ; and herein of the right to administration and removal therefrom. d. Administrator de bonis, nori, and herein of his powers and duties. c. Bond of Executor and Adminis- trator; when and how put in suit, and suit thereon. f. Commissioners of Insolvency ; and' referees of claims appointed by the probate court and the effect of their action thereon. g. Devastavit. h. Insolvent estates ; and herein of the report of insolvency. i. Revival of suits and judgments against Executors and Administra- tors ; and herein of sate of the de- cedent's property without revival. j. Sales by Executors and Adminis- trators ; their requisites and what passes tfiereby. a. Executors and Administrators. 1. If A. die intestate and admin- istration be granted to B., who dies after. -.partial administration, a new ^ministrator de bonis non of A.'s lestat&must be appointed ; the trust wilTnotVie continued to B.'s admin- 238 EXECUTOR AND ADMINISTRATOR. istrator. Hendricks v. Snodgrass, Walk. 86. 2. Upon an obligation of A. B., promising to pay to C. D., curator of the estate of E. D., deceased, or to the legal representatives of said estate, the sum of $950, an action cannot be maintained in the names of certain persons describ- ing themselves as the legal repre- sentatives of the estate of E. D., deceased, without stating hovi' or in what manner they became such. Cushing V. Gibson, Walk. 87. 3. Such an instrument being a chose in action belongs to the exec- utor or administrator and not to the heir. lb. 4. The term legal representative is a generic term embracing seve- ral species as heirs, executors, ad- ministrators, de bonis non, or vi^ith will annexed, and the exact charac- ter in which the plaintiff sues, should be stated in the declaration or it might not be a bar to a second suit. lb. 5. An administrator of a deceas- ed person, dying here without heirs, cannot by injunction restrain the escheator general from collecting the property of the deceased ; a creditor of such deceased person must proceed against the escheator general, who is entitled to the pos- session to the exclusion of the ad- ministrator. Bolls v. Duncan, Walk. 161. 6. See Interest, 2 ; as to inter- est on legacies charged on personal property. Brovmleie v. Steel, Walk. 179. 7. A. having taken out letters of administration on the estate of B., in one state, cannot be sued as ad- ministrator in this state on a judg- ment against him as such adminis- trator in the other state where he administered. Winter v. Winter, Walk. 211. 8. An administrator is not. enti- tled to the possession of his intes- tate's real estate and cannot main- tain an action for forcible entry and detainer on account of it. Car- michcBl-v. DOTw,Walk.221 ; Ev. 14. 9. Under the statute of this state, Rev. Code, 118, § 60, a defendant executor may prove offset or any special matter under general issue. Herrington v. Herrington, Walk. 305. 10. Where A. dies, bequeathing slave to B., who was in possession of slave at A.'s death and so con- tinued, A.'s executor may recover of B. hire for the slave up to th6 period of one year after the grant of letters to him. King v. Cooper, Walk. 359. 11. If the defendant crave oyer of the letters of administration they must be produced ; the brder for the appointment will not do. ' Ca- radine v. Belfour, Walk. 532. 12. Executor in Kentucky may authorize legatee iii this state to sue. Hamilton v. Cooper, Walk. 542. 13. On a judgment against an executor as such, the sheriff should not levy the execution on the indi- vidual property of the executor ; that is no more liable to the judg- ment than a stranger's. Jones v. Miles, 1 How. 50. 14. See Injunction, 1 ; as to whether compelled to give bond on obtaining injunction. 15. The debt of an administra- tor to his intestate is not money in the hands of the administrator, un- der the statute ; unless he insert it in the list of debts reported to the court ; and if he fail, upon com- plaint of some one interested, the probate court may, by consent, de- cide upon the question of indebted- ness or may award an issue to the EXECUTOR AND ADMINISTRATOR. 229 circuit court, when he will be held liable for his debt as money. Kel- sey V. Smith, 1 How. 68. 16. By the common law an ad- ministrator could not be charged in the course of administration with a debt claimed against him,, unless he had inventoried it or acknow- ledged its justness. Would his dis- bursements to the^ full amount of assets and the claim against him be such acknowledgment .' lb. 17. Where a debt has been con- tracted with an administrator, on account of the intestate's estate, debts ■ due by the intestate, pur- chased after the debt with the ad- ministrator was contracted, will not be offsets ; and if the estate be in- solvent the debts of the intestate will not be offsets to debts due the administrator as such, though owned at- the time the latter debts were contracted ; where estates are in- • solvent the law -directs an equal distribution, which would be de- feated by allowing such offsets. Whitehead v. Cad'e, 1 How. 95. 18. See Pleading, 24, 25, and 26 ; as to the plea of the statute of limitations, by executor. Wren v. Span, ] How. 115. 19. It is not necessary that a claim against a deceased person should be probated, in order to make a valid presentation of it to the executor, to save the bar of the statute ; the statute, requiring the probate or allowance of claims, is intended for the benefit of those entitled' to the estate and the. ex- ecutor, and does not affect the rights of the holder of such claim ; a plea, therefore, to an action on a claim not probated, that it had not been probated, would be bad. li. And to the same effect, is Judge of Probate v. Hairstoh, 4 How. 242. 20 20. In an action, by an adminis- trator de bonis non, against the surety of the first administrator, on his bond to recover a balance due on the admfiiistration account of the first administrator, it is cbm- petent for the surety to show that a sum charged by the administrator as paid to him by the debtor of his intestate, was not in fact paid, but that the administrator, who was in- solvent, and owed such debt of his intestate, had received his own pa- per, by collusion with such debtor, in payment of the debt, and that, therefore, the debt to the intestate was still legally unpaid, and the surety of the administrator not lia- ble therefor ; arid to that end such debtor of the intestate could be compelled to testify, even though it might subject hirri to a civil suit. Judge of Probate v. Green, 1 How. 146. 21. The personal property of a deceased debtor, '.in the hands of a distributee, afteT distribution made, is liable to the satisfaction of a judg- ment obtained against the adminis- trator ; nor is that liability affected by the fact that the administrator gave' a bond for his administration' of the estate, on which the creditor had his remedy. Brooks v. Lewis, 1 How. 207. 22. Suits against administrators shall not abate by reason of the in- solvency of the intestate, but shall be' prosecuted to final judgment. Breckenridge v. Mellon, 1 How. 273. 23. Where a distributee of an estate purchases property at the administrator's sale, it is competent for the probate court to deduct from her distributive share jthe amount of her. purchase ; and the allowance of the administrator's ac- count, charging her with such pur- 230 EXECUTOR AND ADMINISTRATOR. chase, will be regarded as such decree of the court ; such allow- ance cannot be made to the preju- dice of other distributees. Mahon V. Bower, 1 How. 275. 24. Where an administrator has passed off a note of his intestate to a distributee, in payment of her distributive share, he cannot credit his account with such note, unless he had previously charged himself with it. lb: 25. A. having administered upon an estate, and having also been ap- pointed guardian of three of the minor, heirs, and executed separate bonds for each, cannot be charged and held liable in the same bill, at the- suit of ttie heirs jointly, because their interests , are each distinct, and separate, and independent ; nor could he be charged in the same suit, as both administrator of the ancestor, arid guardian of the heirs, for neglect in the several characters ; those liabilities being separate and distinct, and in no ways connected ; nor could a bill be filed tO' make an administrator liable as such, and also for a per- sonal debt due by him. Wren v Gayden, 1 How. 365 ; Carmlcliael V. Browder, 3 How. 252. 26. In all cases of trust, where the trust is direct and express in its character, or is direct and techni- cal, and cognizable only in a court of equity, or where the right may be litigated between the trustee and cestui que trust, the statute of lim- itations will not apply; therefore, inasmuch as equity assumes the right of enforcing the duties of ex- ecutors and administrators ; and they come into the possession ' of the property of the deceased as triistees, they will not be permitted, where the estate is still unsettled, to set up the statute of limitations. against the distributees of the estate, calling them to account, and seek- ing to recover specifically the prop- erty of the deceased ; even though such executors or administrators have asserted title in themselves to such property, by virtue of an al- leged allotment of it as their dis- tributive shares. lb. 27. Nor will executors and ad- ministrators be allowed in equity to plead the statute of limitations against the claims of distributees, although there is a remedy in favor of such distributees at law, upon the bond of the executor and ad- ministrator, lb. 28. Where executors were given discretion to lay out a town, and a party, -claiming to be adminis- trator with the will annexed, pro- ceeds, though illegally appointed, to lay out the town, dedicate commons and streets, and sell lots ; his acts will not be held valid, because they * were such as the executors would have been bound to perform, under the will. Vicic v. The City of Vicksburg, 1 How. 379. 29. An executor is authorized to retain money in his hands, to pay a debt due himself, but if he fail to do so, he cannot charge the estate with the amount of the debt, and have it allowed by the orphan's court, on notice, and confirmed by auditors, on exception, so as to make it conclusive on heirs ; the jurisdiction of the probate must not only be over the person, but also over the thing ; and its de- crees are not conclusive otherwise ; and the probate court has no power after an executor has ceased to be such, to decree a debt in his favor, as due by the" testator ; and if the executor seek to have such decree made, he must make it appear affirmatively, from the record, that EXECUTOR AND ADMINISTRATOR. 231 he was executor at the time it was made. Gildart v. Starke, 1 How. 450. 30. The rule of marshalling as- sets, by which thfe personal pro- perty was first subject to debts, then the land descended, and then the land devised, is entirely consistent with our statute law. Fish v. McNiel, 1 Flow. 535. 3 It Where the statute of distri- butions says that the personal estate shall " descend in the same way and manner" as real estate, it means to designate the course of descfent, rather than the kind of title conferred. 3. 32. .See IS. ; and Chancery, 131, for jurisdiction of equity, at suit of distributees, against administrator and others, to recover ancestor's estate, andfor account. 33. An executor, or administra- tor, has no right to the possession of the land of his testator, or intes- tate, except to finish growing crop ; it descends to the heir, who is alone entitled to possession ; if, however^ the executor, or administrator, take possession, and use it, the profits will be assets, as the assent of the heir will be presumed. Smith v. Winston, 2 How. 601. 31. See Surety, 7, for the right of a surety, on the bond of an ad- ministrator, who pays a debt of the administrator, which the adminis- trator contracted for a debt of the intestate, to subject the property of the intestate to his reimbursal. The administrator having that right the surety has it likewise. 35. If an administrator has failed to return an inventory, or have re- ceived, and not accounted for as- sets, he is liable on his bond ; and a court of equity has no jurisdiction to review his administration. Ed- mundson v. Roiert$, 2 How. 822. For jurisdiction of equity oyer administration, see Probate Court, 8. 36. See BiUs of Exchange and Promissory Notes, 33, for action on note payable to J. S. as ad- ministrator. 37. A promise, in writing, by S., as executor, to pay a certain sum for lumber, furnished for the com- pletion of a building which S. as exeputor, was finishing, is binding on S. individually ; as are all con- tracts of executors, though signed " as executor,''^ unless it clearly ap- pear that it was given for a debt of the testator ; and if for his debt, but made payable at a future day, with interest, he is also liable. Sims V. Stilwell, 3 How. 176. . 38. It is a sufficient presentation- of a claim, paid by the surety of an intestate, against such intestate's estate, to save the bar of the stat- ute, that a notice, describing the nature of the claim, was served on the administrator, informing him that a motion would be made against him on the claim ; even though the holder of the claim could not legally sustain such motion ; it is not necessary, in order to make a valid presentation, that the ac- count should he probated, or have the voucher of the oath of the par- ty ; the judgment of a court of record is a voucher of a higher na- ture, and ample justification for the administrator to pay ; but if he pay without such voucher, or that fixed by statute, he does it at his own peril. Smith v. Smith, 3 How. 216 ; Campbdl v. Young, 3 How. 301. 39. If the profits of land in the hands of an administrator be assets, he may be compelled to account for them by the probate court ; if tliey belong to the heir the remedy 232 EXECUTOR AND ADMINISTEATOE. is at law. Carmichael v. Browder, 3 How. 252. 40. An execution against an ad- ministrator is no evidence against the heir, who -is not privy to a de- cree against the administrator, and not bound by it. Mc Coy v. Nichols, 4 How. 31. 41. The administrator takes the personalty ; the heir the land ; a judgment against the administrator, therefore, does not bind the realty, and is no evidence against the heir. lb. 42. A. obtained a decree against the administrators of B., under which the land of B. was sold ; held, that no title passed to the purchaser ; and that the judgment against the administrators of B. was no evidence to charge the heirs of B., and could not be revived against them ; that if there was any right against the heirs, it must be pursued on the original contract of the ancestor, lb. 43. Although the probate court has the right to decree a sale of realty, where the personalty is in- sufficient to pay the debts ; yet it will not decree such sale where the heir has sold the realty, and the debt for which it is sought to sell it has been barred by lapse of time. lb. 44. An administrator may in- dorse and assign notes, the prop- erty of his intestate, for legal pur- poses, in settlement of the estate ; but if he indorse, or transfer, a note of his intestate, on ' his own private account, in purchase of property for himself, to one having knowl- edge of the fact, no title will pass to the transferee, and when a suit is brought on the note against the maker, in the name of the' admin- istrator, for the use of such trans- feree, it will be a good defence to set up such transfer in bar of the action. Prosser v. Leatherman, 4 How. 237. 45. Where a note on its face is payable to A., as administrator of B., it is notice that A. holds it in his representative capacity, lb. 46. Where a suit is brought against an administrator, on his bond, for not paying a debt of the intestate, when he had asset*, it is not a good plea that the right of action did not accrue within six years before the commencement of the suit ; he should plead his ex- emption from liabiUty to pay, as administrator, when the claim was presented to him as such. Judge of Probate v. Hairston, 4 How. 242. 47. Where an executor, within the time limited for the presenta- tion of claims, is heard to speak of a claim against the estate, it would afford a strong presumption that the claim had been presented properly ; but no such presumption arises where the claim is spoken of, after the expiration of the limited time. Pickett V. Ford, 4 How. 246. 48. A claim growing out of a warranty, broken before the death of the testator, is subject to the ope- ration of the statute requiring claims to be presented within eigh- teen months ; it seems otherwise, if the warranty be broken after his death. lb. 49. Where a bill is filed in the probate court at a subsequent term, impeaching the final settlement of an executor, for fraud in it, and for that reason praying that it may be set aside, and the executor de- murred to the ■ petition, the frajid in the final settlement will be thereby admitted ; that fraud will vitiate it, and the executor will still be subject to the jurisdiction of the EXECUTOK>AND ADMINISTEATOR. 233 court, and his account should be set aside.. Hurd v. Smith, 5 How. 562.' But whether the probate court, at a subsequent terra, can entertain jurisdiction of an original bill or petition to vacate its own decrees for fraud ; qucere ? Smith V. Hurd, 7 How. 188. 50. See Detinue, 10. When administrator is sued in detinue, it is no defence that he surrendered up the slave sued for, to an officer who had an execution against his intes- tate. 5i. If a judgment in a suit, against an administrator, as such, for a debt due by his intestate, be rendered against the administrator individually, it will be a mere cleri- cal error, which may be amended at any time by the court, and even without amendment the judgment would be evidence against the ad- ministrator, in an action on his bond, for a devastavit^ Hoggatt v. Montgomery, 6 How. 93. 52. A security on an admifts- trator's bond, who has also pur- chased property at the administra- tor's sale of his intestate's effects, cannot, when sued for the pur- chase-money, enjoin the suit, on the ground that the administrator was insolvent, and the surety was likely to be held hable for him on his ad- ministration bond ; no misapplica- tion ■ of assets being charged. MarsA v. iJenrae^, 6 How. 215. 53. Executor and administrator, though by .statute they need not plead anything but the general is- sue, yet they may plead specially if they choose ; if an executor, sued as such, plead non-assumpsit by himself personally, it will not au- thorize a verdict against him in his own right. Boiman v. Srowfi, 6 How. 349. 54. The executor or administra- 20» tor is a necessary party in every case where distribution of the in- tes-tate's property is sought ; and a decree for distribution, without making him a party, is erroneous. Porter v. Porter, 7 How. 106. 55. On a petition for the distri- bution of A.'s estate, a pro confesso taken against B. as administrator of C, who in his lifetime had admin- istered on A.'s estate, will not af- fect the heirs of A. lb. 56. Where an executor is carry- ing on the plantation of his testator, under the statute which authorizes it to be done, so far as the growing crop is concerned, under the au- thority of the probate court, the debts contracted by him for neces- saries, in completing the crop, are ' privileged claims on the income of the place, but not on the other property ; and a subsequent admin- istrator de bonis non, is bound to pay such debts out of such crop, or if that has been used as assets of the estate, out of an(y other pro- perty of the estate ; and medicines furnished for the slaves, would con- stitute necessaries. Emanuel v. Norcum, 7 How. 150. 57. An executor derives his au- thority from the will, and is author- ized to take charge of the estate before he qualifies ; and expenses which he incurs in taking care of the estate, are a charge upon it- Ib. 58. See Bills of Exchange and Promissory Notes. Administrator when sued on note of his intestate, by pleading general issue, admits the execution of the note ; if he wish to deny it, he must do so on oath. 59. . An executor or administra- tor is entitled to the commissions allowed by law, not merely upon that portion of the estate which has 234 EXECUTOR AND ADMINISTEATOE. been appraised, but upon the whole estate administeted ; the statute al- lowing commissions on the amount of the " appraised value " of the estate,' intended to embrace the whole estate administered ; but the allowance to the executor or ad- ministrator, of his commissions, can only be made upon final settlement, and are to be a credit to him as of that date. Merrill v. Moore, 7 How. 271 ; Shurtliff v. Wither- spoon, 1 S. & M. 613. . 60. The probate court may com- pel an executor or administrator, on petition of those interested, to re- turn an inventory- of property of the deceased, not embraced in a pre- vious inventory. Killcrease v. KiUcrease, 7 How. 311. 61. If the executor give insuffi- cient security, it is the duty of the probate court, on the application of those interested, to require addi- tional security. . lb. 62. See Forthcoming Bond, 31. Whether executors can give such bond, and how execution mu^t is- sue ? 63. The purchase of property by an administrator, at his own salei, is voidable, but whether absolutely void or not, qucBre ? Baines v. McGee, 1 S. & M; 208. 64. If such purchase be not void, the statutory lien for the pur- chase-money would still exist, and could be enforced against the pro- perty in the han(|iS of the vended of such administrator ; and' a -payment by such • vendee to the administra- tor, would not necessarily discharge' the lien ; payment to the estate is necessary. lb. 65. An administrator has no right to sell property for any other purpose than to pay debts, or to enable him to make distribution. n. 66. An administrator sells- pro- perty of his intestate at private sale, and takes notes for the purchase - money, payable to himself, and dies before collecting them. A bill filed by his administrator de bonis lion, in the alternative, either to have the sale by the first adminis- trator declared void, or if held valid, to enforce the statutory, lien for the purchase-money, is not de- murrable for duplicity. Baines v. McGee, IS. & M. 208 ; Murphy y. Clark, lb. 221. 67. A sale of the personal estate by the widow, or the removal by her of the slaves of the intestate, cannot affect the rights either of the administrator or of- the credit- ors. Caruthers v. Wilson, 1 S. & M. 527. . 68. Under the statutes, executors and administrators who give bond for the administration of the estate, are not bound to give appeal bonds ; they may appeal without on*. ■ Scott V. Searles, 1 S. & M. 590. Aliter, if the decree or judg- ment is to make him personally re- sponsible. Wadev. The American Colonization Society, 4 S. 65 M. 670. 69. The distributees of a de- ceased .person's estate are, under the probate law of this state, enti- tled to distribution of the estate, ac- cording to law, after the expiration of twelve months from the grant of letters of administration ; nor is it any bar to such distribution, that there are outstanding debts or liens on the estate ; but it is a condition precedent to such distribution, that the" distributees execute a refunding bond with security, conditioned ac- cording to the statute. Murdoch V. Washburn, 1 S. & M. 546 ; ■^• Berry v. Parkes, 3 S. & M. 625. 70. The distributee of an estate, EXECUTOR AND ADMINISTKATOR. 235 if entitled at all, is entitled to im- mediate distribution ; on applica- tion for distnbution, it is therefore error to permit the administrator " to retain possession of the pro- perty to gather an ungathered crop," before distribution is al- lowed, lb. 71, G. having intermarried with the widow of C:, and enjoyed the possession of C.'s es.tate during his wife's life and after her death, a period of about twenty years, and made no charge against the estate of C, during all that time, for the support or maintenance of C.'s children, who lived with him, or for money paid out on account of the estate ; Tield, that the facts raised a fair presumption that G. never in- tended to make such charge, and that therefore an- account made out by G.'s administrator, embracing such items, should be disallowed ; the lapse of time alone being suffi- cieiit to bar his claim. Carter v. Judge of Prolate, 3 S. & M. 42. 72. J. being in debt, and O. his surety, J. conveyed property to O. to secure him, and delivered it- to O., with verbal aiithority to sell, in case he became liable ; J. died, and O. having been rendered liable and paid J.'s debt, sold the property to indemnify himself; H., a cre- ditor of J. sued O., as executor de son tort of J. : Held, that O. was not thereby made such executor ; no^ would he be such executor, even as to a surplus remaining in his hands, from the sale of J.'s pro- perty, after reimbursing himself, th^re being at the time of suit no representative of J. to receive the money ; and it would be compe- tent for O. to show that J. in his lifetime had ordered such surplus to be paid to other persons than the plaintiffs, and to that end to intro- duce a deed from J. directing such payment. O^Reilly v. Hendricks, 2 S. & M. 388. 73. The publication of notice of the grant of letters testamentary^ is not notice to all the world of the death of the testator ; but notice only of the particular object of the statute in requiring it ; nor is the grant of letters testamentary, though it is notice to all who are directly interested in its subject- matter, and have a right to object to the proceedings, and appeal from the judgment ; if, however, such publication and grant were presumptive evidence of notice of the testator's ' death, it would be competent for the party to show, by positive proof, the want of no- tice thereof. Helm v. Smith, 2 S. & M. 403. 74. Positive proof rieed not be given of presentation, and notice to an executor of a claim against his intestate to take it out of the bar of the statute for non-presentation ; any legal evidence which would satisfy a jury that the executor knew of the claim, would be suffi- cient ; the notice by mail, therefore, of the dishonor of a note of the testator, received by the executor within the proper time, will be a sufficient presentation, jb. The knowledge, by the executor, of the existence of the claim, is equivalent to presentation. Miller, v. The Trustees of Je&rson College, 5 S. &M. 651. 75. The period allotted, under the statute, for the presentation of claims to save the bar, does'' not commence running until the whole time of publication, required by the statute, is completed. lb. Nor does that statute commence running at all, until publication be made. Bowell v. Webber, 2 S. & M. 453. 236 EXECUTOR AND ADMINISTRATOE. ■ 76. See Limitations, 29. The period of nine months during which an administrator cannot be sued, is not . to be computed when the bar of six years is plead. 77. A judgment against an a!d- ministrator, must be against him as such, and not de honis propriis. Hill V. Robeson, 2 S. fe M. 541. And if it be de bonis propriis, it is a fatal defect; but in a suit against administrators, where the verdict was that the " deceased in his lifetime assumed, &c." and the judgment was " that the plaintiffs recover of the defendants adminis- trators of said deceased, as afore said," the judgment was against them in their representative capa- city, and" not individually. Neeley V. Planters Bank, 4 S. & M. 113. Where the judgment is rendered de ■ bonis propriis, the high court will reverse the judgment, but will render such judgment as the court below ought to have rendered. Barroio v. Wade, 49. 78. When property, real or per- sonal, of a minor or a deceased person, is sold by order of the pro- bate court, it is, under a statute of this state, subject to the payment of the purchase-money, in the hands of the purchaser or his as- signee, in the same manner as if a mortgage had been taken on it ; and this lien is notice to the admin- istrator of the purchaser, of the claim, and is equivalent to present- ation of the claim to him, as fully as a mortgage would be, and is not therefore barred by a failure to present it to such administrator, within eighteen months from publi- cation of the grant of letters ; liens of record being always in a state of presentation. Miller v. Helm, 2 S. & M. 687. So, also, the statute barring a claim not presented in eighteen months, does not apply- to official bonds, such as an adminis- trator's bbnd ; such bon^ is a matter of record and always in a state of presentation. Gordon v. Gibbs, 3 S. & M. 473. Nor- to a mortgage. Miller v. Trustees of Jefferson College, 5 S. & M. 651 ; Trustees of Jefferson College v. Dickson, Free. Ch. 474. 79. An administrator may le- gally transfer negotiable paper of his intestate, and his indorsee, if he be innocent, and not chargeable with connivance, will hold it ; but if he receive it, with knowledge that it is assets in the administrator's hands, in payment of the individual debt of the administrator, or for property sold to him for his own use, he cannot hold it ;' and if the note be payable on its face to such person, as administrator, it will of itself be notice that it is assets, and the ad- ministrator de bonis non, may file a bill in chancery against such as- signee and the maker of the note,- to recover the possession .of the note, and also, to enforce the statu- tory lien on the property for which the note was given. lb. 80. See Mortgage, 16, 17. A note secured by mortgage is al- ways in a state of presentation, and therefore is not barred for want of actual notice and presenta- tion to administrator. 81. A general creditor of a de- cedent cannot call the administra- tor to account for his administration in the probate court, unless upon a legally authenticated claim ; and when the estate is insolvent his remedy is at law. Freeman v. Rhodes, 3 S. & M. 329. 32. In general -it seems that a promise by an executor or admin- istrator to pay the debt of his tes- tator or intestate, is not binding EXECUTOR AND ADMINISTEATOU. 237 without a consideration ; such las assets at the time, forbearance to sue for a definite time ; or a credit allowed in the administrator's ac- count for the debt ; so giving a note bearing interest will make him liable. Turner v. Browne 3 S. & M. 425, and see infra, 172. 83. Where an estate is solvent the executor or administrator is subject to suit, at the 'instance of any creditor, in the courts of law, nor will the suit be enjoined, be- cause in the probate court the estate was in the course of- ad- ministration ; nothing but the in- solvency of the estate will stop a suit at law against it. Sanders v. Douglass, 3S. &M. 454.. 84. Whether a creditor's bill against an administrator to have the assets, administered, will lie in this state. Qucere. lb. 85. An administrator- who has sold property of his intestate upon credit under a decree of the pro- bate court, will, in a proceeding against him, be presumed to have collected the amount of the sale until he makes the contrary ap- pear ; he will not be liable* how- ever, beyond the amount collected, provided the security he took for the purchase-money was good at the time and the loss has occurred by unavoidable casualty. Gordon v. Gibbs, 3 S. & M. 473. 86. See Execution, 54 ; scire facis against heir, cannot issue on judgment against executor. 87. Debts due the decedent are assets, but not to charge the execu- tor or administrator, until he has received the money. Berry v. Parkes, 3 S. dc M. 625. 88. An executor or administra- tor may release or compound a debt, and if in so doing he appear to have acted for the benefit of the estate, he will not be chargeable with such dfebt as assets ; nor will he be held responsible for loss without wilful misconduct or fraud ; where, therefore, an administrator com- promised a suit by giving time on the debt claimed, thereby rendering the debt safe, though previously doubtful, he cannot before the debt under the compromise has become due, be compelled by the distribu- tees of the estate to pay, personally, the amount of the debt ; and if the money be not collected, the ad- ministrator, individually, would not be liable. lb. 89. See Limitations, Statute of, 30 ; whether that fixing the period for presentation of claims to ad- ministrator be more than a mere statute of limitations. 90. An administrator has no right or power to file a petition in the probate court to obtain direc- tions from the court as to the mode of administering the estate ; where therefore, M. died, indebted to a bank whose notes "were greatly de- preciated, and M.'s estate was de- clared insolvent; and commission- ers of insolvency appointed thereon, and the bank had made a general assignment of its efiects to as- signees ; and M.'s "administrators, pending the cominission of insol- vency, filed a petition in the pro- bate court, impleading the assignees, impeaching the assignment as frau- dulent, and praying that the as- signees might be compelled to re- ceive their distributive share in the notes of the bank ; held, that the probate court had no jurisdiction of the petition. Robins v. Nor- cum, 4 S. & M. 332 ; Bglhgren v. Duncan, 7 S. <^ M. 280. 91. See Probate Court, 28 ; the administrator of a deceased part- ner cannot, in the probate court, 238 EXECUTOE AND ADMINISTRATOR. call the surviving partner to ac- count, or compel a discovery of partnership assets from him. 92. The lien vi^hich is given by statute, upon land, spld by an ad- ministrator, for the payment of the purchase-money, is not intended for his individual benefit, but for that of the estate ; and it may well be doubted, whether any act of his, short of receiving actuftl payment, will discharge the lien; where therefore, C. as . administrator, sold land of his intestate to T., on twelve months credit, who gave a note with sureties for the amount of the purchase-money, and when it was due, paid part and executed another note with other sureties for the balance, expressing on the face of the note that it was for a honafide loan of money ; held, that the land in , the hands of a third party, to whom T. had sold it, and who had notice of the lien for the unpaid purchase-money, was liable to pay it ; and that it was competent to show by parol, that the npte last given was given for the balance due on the land ; and if it were not competent to show that by parol, yet that the lien for the unpaid balance might still be enforced, the amount thereof appearing by other proof than the note. . Elliott v. Connell, 5 S. & M. 91. - 93. A court of chancery will en- join an executor, after he has been discharged from his trust, and an administrator C. T. A. been ap- pointed, from collecting the assets of the estate ; but whether such executor may not properly retain any money of the estate which comes to his hands, to satisfy any balance due to him by the estate ? QufBre. Slubblefield v. McRaven, 5 S. & M. 130. 94. A power to sell land, if in the opinion of the executor it .Should be deemed advisable, cannot be exercised by the administrator C. T. A. Montgomery v. Milliken, 5 S. & M. 151. 95. A court of probate cannot compel . an administrator to ap- pear before it in vacation^ and give additional security upon his admin- istration bond ; and if it cite him to do so, the proceeding is coram non judice and void. Wingate v. Wallis, 5 S. & M. 249. 96. A judge of probate has no authority to issue process to com- mand the sheriff to take property of all intestate out of the hancfe of an adnjinistrator, though it be alleged that the sureties on the ad- ministrator's bond are not good, and that he is about to ifemove the in- testate's property out of the state. Such process is void. lb. &7. At the September term, 1841, of the probate court of Wilkinson county, the children of C. filed their petition against the adminis- trator of their father's estate, alleg- ing that at the August term, 1841, the administrator had made a final settlertient of his account as such, shewing a balance of $2540 in his favor, which was received, allowed and ordered to be recorded ; that the account was "false and fraudu- lent ; that $3200 were allowed for the board and maintenance of the petitioners who were then, and some of them at the time of filing the petition, infants and without guardi- ans ; and that there were several omissions in the inventory of the administrator ; the answer admitted the omissions . but denied that they were by fraud or design ; held, that the settlement made at the August term, 1841, so far as the account- fell within the jurisdiction of the probate court was final and conclu- EXECUTOR AND ADMINISTEATOR. 239 sive ; but that so far as it allowed the administrator fof the board and •maintenance of the petitioners, it was erroneous and void. Jones v. Coon, 5 S. & M. 751. 98. Where the distributee of an estate is also indebted.to that estate for property purchased at the sale of its effects, which indebtedness has been reduced to judgment, the probate court Yvill order the distri- butive portion of such distributee to be credited on his indebtedness. M'Gee v. Ford, 5 S. & M. 769. 99. C. &. H. filed a petition in the probate court against W. C, al- leging that W. C. and themselves were jointly administrators ad col- ligendum on the estate of S. C. and that W, C. had in hig possession property, of the estate which he claimed as his own and refused to allow it to be-inventoried, and pray- ed that he might be required to in- ventory it ; W. C. filed a petition to the jurisdiction of the probate court ; held, that the probate court should entertain jurisdiction of the peti- tion ; and W. C. might have an is- sue to the circuit court for the in- Tfestigation of his claim to the pro- perty in his possession ; aliler if W. C. had been a stranger to the administration. Compton v. Camp- ion, 6 S. & M. 194. 100. An executor or administra- tor is not bound to pay the debts of his decedent beyond the assets which he receives ; nor will . his wi-itten promise to do so make him liable, unless founded on other suf- ficient consideratiorf ; where, there- fore, B. & J. B. being sued by H. upon their joint note offered to prove that the note was given in satisfac- tion of a decree of the probate court against B., as administrator of P., who in his life-time was ad' ministrator of N. P., in favor of H., as administrator de bonis nnn of N. P. ; held, that the evidence was ad- missible and that if the note were executed in settlement of that de- cree, B. & J. B. were not liable on it unless B. had assets sufiicient for its payment. Byrd v. Holloway, 6 S. & M. -199. 101. The probate court has no power to appoint an administrator ad cplligendum where there is one in chief Searles v. Scott, 6 S. & M. 246. 102. On a note given to an ad- ministrator for the sale of property of his intestate he may institute suit in his own name, though it be payable to him as administrator ; and on his death the suit may be revived in the name of his person- al representatives. 'Laiighman v. Thompson, 6 S. & M. 259. 103. See Consideration ; it is competent to show a failure of the consideration of notes given an ad- mistrator for personal property of his intestate. 104. W. and others, distributees of the estate of M., filed a bill in the probate court against P. and others, as the sureties of S. M. on her- administration bond of M.'s es- t^e, S. M. having intermarried with one B. and removed with the property of the intestate out^pf the state ; the object of the bill was to compel B. and his wife to account for the property ; to have the amount due to the complainants decreed to them, and the bond declared for- feited and put in suit'; P. plead that by a former decree of the probate court, a proceeding against him as administrator of M. (which office he once filled conjointly whh S. M. but had afterwards resigned) for the SE^ie matter and to the same effect with the present, had been dismissed by the court ; held, that 240 EXECUTOR AND ADMINISTRATOR. plea was insufficient ; P. having in the two proceedings been implead- ed in different characters, in one as administrator and in the other as suretyof the administratrix. Wash- burn V. Phitlips, 6 S. & M. 425. 105. Where an administrator has left the state with the property of his intestate, can the distributees of the estate proceed by publication to make such absent admiilistrator a party to a proceeding in the pro- bate court by bill, for an account of his indebtedness to the estate afid to have his bond put in suit against the sureties ? lb. 106. Is not a bill in the probate court by the distributees of an es- tate against an administrator and his sureties on his official bond, to have an account of what is due by the administrator taken and to have his official bond declared forfeited and put in suit, liable to demurrer for multiplicity of parties .? lb. 107. In plenary proceedings by bill in the probate court against an administrator, it is premature to en- ter a decree without taking the bill for confessed, lb. 108. Where a judgment has been obtained against the administrators of a deceased person, and lh%y, without paying the judgment, pro- ceed to distribute the deceased's property among his legal distribu- tees until it is ail divided, the judg- ment creditor may levy his' execu- tion on any of the property thus distributed ; and that though the judgment be assigned and at the time of the levy belong to one of the distributees; the equities among the several distributees as to the proportion in which they must pay the judgment cannot be settled in a court of law on a motion t^quash the execution. Vanhouten v. Reiley, 6 S. & M. 440. .109. A judgment rendered against an administrator after he has resigned his letters of adminis- tion, and letters de bonis non have been granted to a third party, is binding neither upon the estate nor the administrator, and is a nullity. Buckingham vl Owen, 6 S. & M. 502. 110. The statute makes it the duty of executors and administra- tors to cause publication to be made for the presentation of claims against the estates which they rep- resent, to ■ be commenced within two months after granting letters testamentary. The . same sta-tute also provides that all claims against the estates of decedents shall be presented, &c. within eighteen months after the publication of no- tice ; held, that under this statute to bar a claim not presented within eighteen months from, the publica- tion of the grant of letters, the ex- ecutor or administrator must show affirmatively that the publication was commenced within two months after the granting of letters testa- mentary. Pearl v. Conley, 7 S. & M. 356 ; creditors are not bound to take notice of publications to pre- sent their claims, &c. made after the lapse of that period from the date of appointment, lb. 111. The transfer of a note due to an estate, by the administrator, in payment of his own debt, gives the assignee, with notice, no right of recovery ; and a subsequent admin- istrator (the first having resigned his office) maylenjoin the collection of the note in equity ; and the chancellor to prevent multiplicity of suits will direct fhe note to be delivered up to the administrator de bonis non. Scolt y. Searles,1 S. & M. 498. 1 12. A court of equity will en- EXECUTOR AND ADMINISTEATOR. 241 tertain a bill for discovery and an account of assets, against an execu- tor or administrator, upon a pure legal claim. Martin v. Glasscock, 1 S. & M. Ch. 17. 113. Where a person is sought to be charged in equity as executor de son tort, he should be sued as a regular executor, lb. 114. Where an administrator sold his intestate's property and took from the purchaser, besides his bond for the purchase-money, a note of a third person as collateral, it was held that no negligence of the administrator to collect the col- lateral and the loss caused thereby could affect the administrator's right to subject the property sold to the payment of the purchase-money under the statutory mortgage there- on.- Steger v. Bush, IS. & M. Ch. 172. 1 15. It is a valid defence to an action upon a promissory note against the maker, that the note belonged to a deceased person's es- tate, and that the plaintiff received it in payment of an individual debt of the administrator. Would the same rule apply if the note were payable on its face to the adminis- trator .? Cotton V. Parker, 1 S. & M. Ch.l91. 116. Where the testator directed certain lots of ground to be sold by his executor, if in the opinion of the executor it should be advisable, to accomplish the purposes of the will ; held, that this was a discre- tionary power conferred upon the executor personally, and could not be exercised by the administrator, cum leslamento annexo. Montgo- mery v. Millikin, 1 S. & M. Ch. 495. 117. An executor, as such, has- no power to pledge the estate of his testator for a loan of money, nor to 21 create any lien upon it by deed or otherwise. Ford v. Russell, Freem. Ch. 42. 118. In the case of Vertner v. McMurran, Freem. Ch. 136, Chan- cellor Buckner decided that a court of equity had concurrent ju- risdiction with the probate court, wherever it had, previous to the adoption, of our present constitu- tion, jurisdiction in matters testa- mentary ; but the high court revers- ed the opinion. See McMurran v. Vertner. 119. An administrator has no power to purchase property for the estate with the funds of the estate ; and if he trade off a note belong- ing to the estate to one knowing the fact, the transfer will pass no title, and the note or its proceeds can be recovered by the estate ; as the property of a deceased person is a trust fund in the hands of the administrator for the benefit of the creditors and distributees of the es- tate, Briscoe v. Thompson, Freem. Ch. 155. 120. Where an administrator sold the property of the deceased, and the properly was levied on in the hands of the purchaser under a judgment against him and the ad- ministrator, the purchase-money of the property not having been paid to him, being present at the exe- cution sale, encourages a third per- son to bid for the property, telling him that the title is good; held, that the administrator would not be permitted afterwards to enforce against such third party buying the property, the administrator's lien for the unpaid purchase-money. Ford V. McGehee, Freem. Ch. 460. 121. Where an administrator purchased slaves belonging to the estate, the purchase will be such 242 EXECUTOR AND ADMINISTRATOR. administration or conversion of them as will prevent the administrator de bonis non from maintaining a suit for their recovery ; the distri- butees of the intestate could alone sue for and recover the slaves, in the hands of any person having no- tice of their having belonged to the intestate, and having been ille- gally sold. Miller v. Womack, Freem. Ch. 486. 122. A suit properly framed may, it seems, be prosecuted against both the administrator and adminis- trator Ae bonis non of a deceased person ; but the bill must show a right to sue them ^ distributees, therefore, of the intestate who sue the administrator and administra- tors de bonis non of the adminis- trator of their intestate, cannot maintain the suit, to recover prop- erty of their intestate ; the suit should be brought by the adminis- trator de bonis non of their intestate. lb. 123. Where a bill is filed against administrators on the ground that they have not returned a true in- ventory of debts and property, it must state distinctly the errors and omissions, as none will be noticed but those pointed out. lb. 124. An administrator who sells property of his intestate and takes insufficient security for the pay- ment of the purchase-money is liable for the amount lost thereby, if he did so from bad faith, not otherwise. Davis v. Yerby, 1 S. & M. Ch. 508, 125. A bill against an adminis- trator, charging him with waste and 'embezzlement of his intestate's es- tate, must njake specific and definite charges of the particular waste and ■embezzlement; general charges are not sufficient ; if it is sought to charge .the executor with default or negli- gence, the particular default must be put in issue and proved. lb. 126. An administrator of an ad- ministrator cannot be called to ac- count for the estate of the intestate of the first, without proof that the es- tate in fact came to his hands, lb. 127. Where an interval of twelve years has elapsed since an execu- tor has ceased to act in that capaci- ty, and an attempt is made to bring him to an account, and he answers that he has fully administered, no decree for an account will be ren- dered against him. lb. 128. P. being administratrix upon the estate of S. P., exchanged some notes of her intestate for two ne- groes, which were inventoried as the property of the estate of S. P. ; P. intermarried with S. against whom judgment was afterwards ob- tained, and execution thereon levied on one of these negroes ; held, that the negro was the property of the estate of S. P., and not liable to the judgment. Shaw v. Thompson, 1 S. & M. Ch. 628. 129. If an administrator buy pro- perty with the means of his intes- tate, the property sb ^bought will be considered and treated in equity as part of the estate of the dece- dent ; and if such property be in- ventoried by the administrator in the probate court, the record thereof will be notice of the fiduciary char- acter of the property so purchased and inventoried, lb. 130. An administrator may have a right, given to him by statute^ of a trial at law of the right to his intestate's effects, when levied on by execution, without impairing his right to relief in equity. lb. b. Accounts of Executors and Ad- ministrators. 131. Where the law required an EXECUTOR AND ADMINISTKATOE. 243 administrator's account to be re- viewed and allowed by the county and probate court, to make it final, it must appear by positive testimo- ny that it was reviewed, before it will be final. Cameron v. Gibson, Walk. 500. 132. See Guardian and Ward, 3, 4 ; how far accounts and settle- ments of executor and administra- tor made without notice, are final. 133. The final account of an executor, allowed by the probate court, cannot be set aside for any irregularity or error in the pro- ceedings ; that could only have been done by appeal ; it may how- ever be impeached for fraud in ob- taining it. Smith V. Hurd, 1 How. 188 ; it is final and conclusive after the term at which it is allowed. Stuhblefield v. McRaven, 5 S. & M. 130. 134. An executor, after final ac- counting with the probate court, will, so long as he retain the office of executor, be still held amena- ble to that court, and required to account for all items which have originated since his alleged final ac- count. Smith V. Hurd, 7 How. 188, 135. A settlement of his account by an administrator, made without giving the notice prescribed by the statute, is void. Washburn v. Phil' lips, 5 S. & M. 600. 136. Disbursements made by an administrator for the board and maintenance of the infant distri- butees, are not proper charges in his account against the estate, lb. ; and any judgment or decree allow- ing such account, is void. Jones V. Coon, 5 S. , in 1837, settled a debt for R. equal to M.'s debt due to R. in 1836 ; that M., in 1836, had collected large sums of the partnership debts of M. & R., equal to the debt of R.'s, which M. had paid in 1837 ; it did not appear that M. had ever paid to R. any of these partnership sums so collected, but in 1838, 1839, and 1840, made large payments upon the notes due in 1836, held by R. Upon this proof the referees reject- ed R.'s claim, and the probate court confirmed their report ; held, that the clear proof of the once subsist- ing debts due by M. to R., and the want of clear proof of its payment, rendered it more subservient to the ends of justice, that the report of the referees should be recommitted to them for a second examination ; in which, however, they were to be influenced by their own estimate of the testimony. lb. 184. Where claims against the estate of a decedent were referred, by the probate court, to referees, who made a report which was re- ceived and confirmed, and the parties by an agreement entered of record in the probate court, agreed that the former order ap- pointing referees, and also their report be set aside and the claims in controversy referred to other referees ; which was done, and they reported in iavor of the claims, and their report was approved and confirmed by the court; it was held, that if any objection existed to the original appointment of ref- erees, the party waived it by agreeing to set aside their appoint- ment and report, and to the ap- pointment of other referees. 'Re- gan V. Stone, 7 S. & M. 104. . 185. In an action upon an ad- ministrator's bond, the bond is but inducement to the action, and jao recovery can be had upon it with- out proof of damages ; without such proof it is not a valid claim against an insolvent estate or against any one ; a report of referees, therefore, to whom a claim EXECUTOR AND ADMINISTRATOR. 251 against an insolvent estate was re- ferred, which shows that the amount of the penalty of an administra- tor's bond was allowed as a valid claim against the estate, without any proof of a breach of the bond, or of damages sustained by the parties interested, is erroneous on its face. Green y.Creighton, 7 S. & M. 197. 186. Referees to whom a claim against an insolvent estate, is re- ferred by the probate court, are nfat bound to report the evidence on which they found their report ; yet in all cases they ought to do so, as that is the only way by which the judgment of the appellate court can be had, or the validity of the claim referred to them. lb. 187. Where a claim was rejected by commissioners of insolvency, and afterwards referred by the pro- hate court to referees and by them allowed and the report set aside by the probate court on exceptions to it ; held, that the decree setting aside the report of the referees was not Conclusive against the va- lidity of the claim, and it was competent for the probate court to recommit the claim to referees. lb. g. Devastavit. 188. A scire facias may be sued out against an executor or admin- istrator on a judgment against him, as such, to make him liable de bonis propriis for a devastavit; but in such case there must be proof of a devastavit ; and the mere allega- tions in the scire facias will not justify a judgment final by default. To such scire facias, being in the nature of an original action, the executor may make his defence by plea. Sims v. Nash, 1 How. 271. 189. Executors and administra- tors are not liable in this state, be- yond the amount of assets, for any omission in pleading, false pleading or mis-pleading ; a judgment or decree, therefore, against adminis- trators as such, will be no evidence of assets ; and in a proceeding against executors or administrators suggesting a devastavit, even in England, the judgment against them, without the execution and return of nulla bona and a devastavit, would not be sufficient to charge them personally. Vick v. House, 2 How. 617, to same effect. Hoivard V. Cousins, 7 How. 1 14. 190. In proceedings to make an administrator liable for a devastavit, a judgment against him as admin- istrator, will be erroneous. lb. 191. In an action aga'inst an ad- ministrator to render him individu- ally liable for a devastavit, in not paying a judgment against him, he may plead and show that he has fully administered, even though he has not declared the estate insol- vent ; for not having declared the estate insolvent and thus produced an equal distribution among credit- ors he might be liable on his bond, but not in a proceeding for a de- vastavit, lb. 192. See infra% Executors and Administrators, tit. Insolvent Es- tates. _- 193. Ima executor,'against whom as such, various judgments have been obtained, use the assets of the estate of his testator in the pay- ment of the junior judgments against him as such executor, leaving the eldest judgment unpaid, iie will be guilty of a devastavit ; and will be liable to a proceeding against him by scire facias, as such executor, to subject him to the payment de bonis propriis, of the judgment re- covered against him as executor, and thus left unpaid ; in such case, the scire facias should state what 252 EXECUTOR AND ADMINISTKATOR. amount of assets had come to the hands of the executor, as he would not be liable beyond that sum ; and he may plead to such scire facias, notwithstanding the former judgment against him, /iZerae admin- istravit, and will be discharged if he can show a full and proper ad- ministration of the estate ; such plea will not, however, be sup- ported if there h?s been a misap- plication of assets. Black v. Bar- ton, 6 S. & M, 239. h. Insolvent estates ; and herein of the report of insolvency. 194. An administrator may re- port the estate of his intestate to be insolvent at any time within the period when claims may be brought against the estate ; if he so report it at a later period it will be a sus- picious circumstance; and if a judg- ment has been obtained against an administrator, before a declaration of insolvency, such judgment will, after such declaration, be stayed by the court in which it is rendered, on proof of the declaration of insol- vency, under that provision of the statute which says that no action shall be commeaced or sustained against the administrator after the estate is reported insolvent. Parker V. Whiting, 6 How. 3^; and a court of chancery will enjoin such execution. Neibert v. Withers, 1 S. & M. Ch. 599. It is otherwise however, if the judgment be ren- dered in the lifetime of the intes- tate. Dye v. Bartlett, 7 How. 224. 195. It seems that the action of the probate court upon a represen- tation of insolvency by an admin- istrator of the intestate's estate, is conclusive upon the circuit court, and it will not therefore be erl^or for that court to refuse to hear testimony to show that such re- port was improperly or improvi- dently made ; it not being attacked for fraud. lb. It seems that on a bill to enjoin an execution on the ground of the insolvency of the estate, it will be no answer that the declaration of the insolvency was procured even by fraud, ^.Neibert V. Withers, 1 S. &. M. Ch. 599. 196. Where an insolvent estate is indebted to a bank whose notes are below par, and the administrsi- tor seeks to pay the debt in the notes of the bank, a mode of reaching the object is to except to the report of the commissioners of insolvency, and have the claim of the bank referred to referees, to whose report the exception raising the point might be taken ; another mode would be for the administra- tor to have required a suit at law upon such claim, and frame the pleadings therein so as to reach the point at issue ; whether such an end could be obtained by the administrator permitting himself to be sued on his bond for a devas- tavit and making a set-off to the debt due to the bank of its own notes ; Qumre ? Robins v. JVbr- cum, 4 S. & M. 332. 197. If an administrator after the estate is reported insolvent, dis- charge debts not privileged, the payment is illegal and he is guilty of a devastavit ; but the probate court has no other control over him for it, except to refuse to allow his accounts or to remove him from office ; the remedy for a devastavit is in another forum. Harris v. Fisher, 5 S. & M. 74. 198. Under the statute of this state, which provides " that when a person dies insplvent his estate both real and personal, shall be distributed to and among all the EXECUTOR AND ADMINISTRATOR. 253 creditors in proportion to the sums to them respectively due and owing," taken in connection with the stat- ute that makes " all contracts and liabilities of co-partners joint and several," the debts due by a de- ceased person individually, and as a partner will stand on exactly the same' footing and be entitled to equal satisfaction out of the inspl- vent's estate ; in such case if the creditor of the partnership have sued "the surviving partners, and procured payment of any portion of the debt, the estate of the de- ceased will be entitled to the benefit of it ; if the creditor look only to the estate' of the deceased, and that pays more than its pro- portion, the representatives o'f the estate will stand in the place of the creditor and be substituted to.his. rights with reference to the other partners. Dalghren v. Duncan, 7 S. & M. 280. (Chancellor Buck- ner decided diiFerently in Arnold V. Hamer, Freem. Ch. 599 ; Oakey v. Rabb. lb'. 546.) 199. See Set-Off, 30; what is good set-off against debt due to insolvent estate. 200. Pending a bill filed hj an administrator, to ascertain to whom notes secured by a mortgage made • by his intestate should be paid, the estate of the mortgagor was declared insolvent, which fact was made the matter of a supplemental bill by the administrator ; held, that the insolvency of the estate did not suspend the action of the court, in granting a decree, in the case of the right of a successful litigant to a sale of the mortgaged premises to pay the debt. Cannon v. Kinney, 1 S. & M. Ch. 555. 201. It is not necessary before an estate of a deceased person can be declared insolvent, that the real 22 and personal estate of the deceased should be sold and reduced to mo- ney ; it is sufficient if the admin- istrator or executor, from a com- parison of the probable value of the real and personal estate, with the debts, shall deem the estate in- solvent and so represent it. Nei- beH V. Withers, 1 S. & M. Ch. 599. 202. After an estate has been declared insolvent, a suit can only be maintained against it on a bill averring that the declaration of in- solvency had been procured by fraud. Miller v. Womack, Freem. Ch. 486. i. Revival of- suits and judgments ' against Executors and Adminis- trators ; and herein of sale of ihe 'decedent''s property without revival. 203. See Execution, 1, 2. Ex- ecution against administrator on judgment against intestate, without revival, is irregular. Hicks v. Mur- phy, Walk. 66 ; Hubert v. Williams, lb. 175. 204. See Execution, 3 ; as^o right to issue execution after death of defendant,'without revival. Wit- son V. £*rWanH,Walk.' 155.. 305: Where one of the defend- ants (a* non-resident) to a suit in the supreme court, dieS, the suit may be revived by publication un- der oirection, of- the court. Dis- makes v. Terry, Walk. 180. >- 206. See Chancery, 30 ; as to power of administrator aii colligen- dum to revive bill. 207. Scire facias against an ad- ministrator to revive a suit against his intestate is not in the nature of an action and may be prosecuted previous to the expiration of nine months from the grant of letters of administration, in which period there 254 EXECUTOR AND ADMINISTRAtOR. is an inhibition against suitg. Breck" enridge v. Mellon, 1 How. 273. 208. On scire facias to revive suit against two defendants, and Ser- vice on one onlj', judgment against both will be irregular. . . lb.- 209. Oja, scire facias to revive, judgment should be rendered against the administrator in hi^ representa- tive capacity. • lb.. . 210. A sa\e under ■ execuljon against an intestate, withofft revival against his admiriistrators, in ca,sg of personalty, or heirs, in case of realty, is voidable only and not void, and cannot be collaterally attacked. Smith V. Winston, 2 How. 601. 211. It seems, that in this state, making all contracts joint and se- veral, and making th^m survive against the representatives of the deceased contractor, a. joint action may be brought against' the surviv- ing obligor, and .the repreg^tatives of such deceased. obligor; Jones \. Stanton, 7 How. 601 ; sed aliter, ; the executor of a deceased maker cannot, be jointly sued- with the sur- viving maker. Poole v. M'Leod, 1-S,. & M.'391 ; but in the case, of a"writing (jbligatoj-y, if .one die ■pending the suit, the action may Tie revived agaiSst his Representatives, and proceed thus revived against them and the survivor jointly, and judgment accordingly be. rendered against them ; so a joint suit may be prosecuted, ajgainst the survivors and the representatives of a decefis- ed obligor. Henderson v. Talbert, 5S. &M. 109 ;sQ, alsoj^the rule is the same with referetice to the joint makers of a promissory note, where one has died. . Woodhouse v. Lee, 6 S. & M. 161. 212. L.*su6d S. and H. and P. and M. upoji a joint note ; M. died ■during the progress of the suit and iefore judgment ; whereupon L., havpg brought the administrators of M. before the court by scir^ fa- cias, dismissed the suit against the other partie's, and ' took judgment against the administrators of M. ; held, that the proceedings were reg- ular and proper, lb. 6S.&M.161. ' 213. Where a party defendant, who has pleaded to the apjon diSs during the progress of the suit,. and his adininistrntors ai% brought ip by scire facias^, the plea filed during the life-tim6 of the intestate will be the ptea of the administrators, if they' omit ' to Jile a plea to the scire facias. lb, y Sales by Executors and Admin- istrators ; their requisites and what passes thereby. . 214. Executors and administra- tors can only sell the property of the decpdent in the mode prescri-; bed by law ; a private sale, there- fore, by an administrator, of a slave of his intestate, passes no title ; and the vendee will be compelled to yield the property to ^he right of the distributees. Cable v. Martin, \ How. 558 ; Idem, Baines v. M*- Gee, 1 S. & M. 208. And if the return of sales by an administrator do not show upon its face that they were made according to the statute, it may be attacked, and it may be shewn by .parol evidence that they were n6t so made. Worten v. Howard, 2 S. & M. 527. ^15. Where the administrato? in right of his wife, who was adistri- butee of the estate, was entitled to one-third of the property sold by him at private sale,, the vendee would acquire' title to that extent ; her interest in the property by the husband's possession as administra- tor becoming his in his own right. Cable V. Martin, 1 How. 558 ; Baines v. M'Gee, 1 S. & M. 208. ■ EXECUTOR AND ADMINISTRATOK. 255 216. Where an executor sells, by order of the probate court, land of his testator, and it is at th4 time subject to the general lien gf a judgment against the testator, and the purchaser at.such sale takes a deed from the executor without covenants of warranty, and the land is "aftervards sold under -the exe- cution against the testator withfOut revival of the judgment, the pur- chaser at executor's sale can Have no relief when sued for the pur- chase-money; he took 'a deed- with- out warranty and'must'risk defects in title. Smith v. • Winston, 2 .How. 601. 217. An illegal sale by an ad- ministrator does not change the title. Edmundson v. fieherts, 2 How. 822. . . 218. An administrator's sale of the realty of his intestate, made un- der a decree of the probate court, rendered without the notice to those . interested, required by the statute, passes no titl^ to the vendee ; such sale is- absolutely void ; afid when the vendee is sued for the purchase- money he may show by the record of the probate court his want of title, and' thus establish' the entire failure of consideration of the ftote. Campbell v. Brown, 6 How. 106 ; lb. 230 ; and no eviction is neces- sary to enable the vendee to make the defence. Puckett v. MWonald, 6 How. 269 ; and the records of the probate court must show that legal notice had been given. Gwin v. McCarroll, 1 S. & M. 351 ; yet. if a purchaser object to the validity of such sale he must produce the record ; his mere allegation will not do ; the probate court will he presumed to have exercised its dis- cretionary power to order the sale properly until the contrary appear, which must be shewn by the objet- tor. Smith v. Denson, 2 S. & M. 326 ; lb. Laughman v. Thompson, 6 S. & M. 259; wfien,' however, the record is produced it must show affirmatively that everything neces- sary to give the court jurisdiction was performed, or. the sale will be void, Laughman v. Thompson, .6 S. & M. 259-; arid the recitals in the record that " publication had been made in pursuance of the or- , der," would be, even if evidence of publication, no evidence that. cita- tion- had been posted' up at three- public places. Planters Bank v. Johnson, 7 S. & M. 449. 219. The probate court has pow- er, at the term next subsequent tO' an administrator's sale, to set such' sale aside for fraud ; where an ad- ministrator' sold property of his in- testate for about one-fourth of its ap- praiseid value, under circumstancag which evinced a fraudulent combi- nation on the part of the admiiiis' trator -and purchaser, to -prevent bidders from ?ittending the sale and to -buy in the property fgr the fami- ly of the intestate, without regard to the rights of creditors^ such sale will be fraudulent "and will be set' aside by the probate court. Plant- ers Bank V. Neely, 7 How. 80 ; the sale of realty hy an admfnistratpr is. not final until reported to and confirmed by the probate court. Smith V. Densdh, 2 S. &. M. 326 ; such a sale cannot be set aside for- fraud at a subsequent "term. Turn- bull V. Endicott, 3 S. & M. 302. 220. C." died possessed of real estate ; jn 1821 the legislature passed an act authorizing C.'s ad- ministrator to sell the land upon terms and conditions prescribed, and to invest the proceeds as in his discretion would 'be most judicious fo"r the widow and -heir; the ad- ministrator sold tiie la.ud, and in 256 EXECUTOR AND ADMINISTRATOR. 1838 C.'s heirs filed a bill to set the sale aside ; held, IhaX the sale, if regular, was valid and passed title ; the..a(3t of the legislature not being unconstituticMial. Williamson y. Williamson, 3 S. u value, in consequence of thalailur^ of the plaintiff to make j^iBmised'' improvements. Brewer \. Harris, 2 S. & M; 84; And a plea in bar, averring that the lot had been pur- chased on the condition that certain representations of the vendor should ' be complied with ; that those repre- sentations were false, and had not FRAUD AND FRAUDULENT CONVEYANCE. 267 been complied with, and so the con- sideration had failed, would not be multifarious, but a good plea. El- lis. V. Martin, '2 S. & M. 187. 23. Facts tending to establish fraud and failure of consideration, or either, may be proved under general issue; where the action is on a note, or for a sum certain ; perhaps alUer, if upon a quanlurti meruit, or generally, for unliqui- dated damages. Ih. 23. B., while suit was pending against him, bought a piece of land from his infant brother, for a high price, gave his note, payable im- mediately, for it, and executed, a deed of trust to C. upon the land, and nearly all his other property, to' secure the payment of the note, and in the deed included the crops of cotton to be grown, with, power to sell at ten days' notice ; held, to be a fraudulent deed as to creditors, and void. Reed v. Carl, 3 S. & M. 74. 24. See Personal Property, 10. j Possession for three years vests title as to creditors, though the vendee held by conditional sale, if the bill of sale be not recorded. 25. In the year 1823, E. F., be- ing in debt, sold his slaves at public sale to F. . who, as consideration, agreed to pay some of E. F.'s debts, and I'^ft the slaves in E. F.'s pos- session ; F. afterward sold the slaves to J. F.', the father of E. F., on con- dition J. F. would pay him the debt he had paid for E. F. ; whereupon J-. F. still left the slaves with E- F., who retained possession of them until 1840 ; held, that this long pos- session by E. F. established a.' pri- ma facie case of fraud against J. F. when claiming the slaves against an execution creditor of E. F. Rankin v. Holloway, 3 S. & M. 614. See Executor and Administra- tor, 221 ; a private act of the legis- lature may be declared void if pro- cured by fraud. 26. Testimony sufficient to satisfy the minds of the jurors, is all that is requisite to establish fraud. Rice V. Dignoiaitty, 4 S. & M. 57. 27. The statute of frauds in this state differs from the statute of Charles II. in containing the word promise as well as the. word agree- ment ; it is not necessary, there- fore, under that statute, that the consideration of the promise should be in writing ; therefore a guaranty in these words : " 1 will guaranty^ the payment of the above" is blad- ing. Wren v. Pearce, 4 S. & M. 91. 28. A deed of trust, vBy the law of Louisiana, the husband can sell neither the paraphernal nor dotal property of his wife ; and if he do, the sale will confer no title ; where therefore a second husband sold a slave, the property of the succession of the first husband's ^estate, the sale was declared void. McMurranv. Soria, I4 How. 154. 19. Where the husband, in right of his wife, is in possession of her life estate in lands on which a crop of cotton is- planted, and the wife die before it is gathered, the hus- band or his representatives will be entitled to the crop when gathered. Hall V. Browder, 4 How. 224. 20. A stipulation *in a marriage contract, that the husband should 24* have the income and profits of the land and slaves of the wife, will entitle him to the emblements of land held by the tenure of the wife's life, where' she dies before the crop is gathered. . lb. 21. The husband is entitled to a vested legacy of the wife, although not reduced into possession during coverture, and the purchaser of the same from the husband in the wife's lifetime will acquire a good title ; an assignment by the husband, during the lifetime of his wife, of her chores in action, being valid. Lowry v. Houston, 3 How. 394. See also Wade v. Chrimes, 7 How. 425 ; Scott v. James, 3 How. 307. 22. It seems that the husband is the next of kin to his wife, by re- lation of marriage, and takes her property, as such, in case of her- death ; but whether so considered, or not, her personal property, re- maining after death, goes to her husband, either jure mariti or as next of Icin.. lb. 23. The husband acquires an absolute right to the property of the wife obtained during her coverture, and he may si5e~for Tl^in his own name without joining his wife. It is only necessary to join husband and' wife in a suit for wife's prop- erty, where the right would survive to the wife. Magruder v. Stewart, 4 How. 204 ; Wade v. Grimes, 7 How. 435. 24. Where a woman was mar- ried three times, and was entitled to certain property as o ne of the distsibutees of her firstTiusband's estate,~and there was no division or partition of the 'property Huring her coverture with the second hus- band, anTho assignment or sale of it by him, nor any other act evin- cing an assertion of title by him, the rights of the wife will standj. 282 HUSBAND AND WIFE. after the death of the second hus- band, in the same situation as at the time of their marriage ; and, on her third marriags,. they will pass, at her death, to her thir d hus- "Mf5a7'"as her'sHfViv6r';''~Wade v. Grimes, 7 How. 425; Harper y.^ Archer, 4 S. & M. 99. Otherwise,' however, if the second husband had reduced the property to pos- session. Scott V. James, 3 How. 307. 25. The rights of. the wife to her personalty are at an end when the property is reduced to possession by the husband during coverture; the title thereby becomes absolute in hira. Killcrease v. Killcrease, 7 How. 311 ; but if the right ac~ crue after coverture, it is absolute in the husband, without reduction ., to possession. Magruder v. Stew- art, 4 How. 204 ; Waie v. Grimes, 7 How. 425 ; and if he survive the wife, the -right, in any case, sur- vives to him, though never reduced to possession. Lowry v. Huston, 3 How. 394 ; Scott v. James, 3 How. 307 ; Wa,de v. Grimes, 7 How. 425. 26. A married woman stood by, and suffered, without objection, cer- tain slaves, owned by her as her separate property, to be valued for her husband, and in his presence, with a view to his taking stock in a bank upon a mortgage of the slaves ; held, that her conduct was not such as would diivest her of her property. Palmer v. Gross, 1 S. & M. 48. And it is questionable whether she can be deprived of it in any other mode than the one prescribed, by the instrument of settlement. 3. 27. A private sale, by an admin- istrator who has intermarried with the widow of his intestate, of prop- erty belonging to the estate, passes only the right of the wife, and does not affect the rights of the distri- butees. Baings \. McGee, 1 S. & M. 208. ' 28. See BeecL, 26, 27 ; how far marriage contracts are within the registration laws. 29. In a grant of property to a married woman, the words, "in her own right, would not, by the common law, convey a separate estate in the property to the wife, but would operate as a co»veyance to the husband ; the statute of 1839, which allows married' women to become seized and possessed of real or personal' property in her own name and as of her own prop- erty," wouM so far alter the rule of the common , law as to secure the property conveyed to a married woman, "*» her ovm right" to her; but it would not secure the rents and profits of the property; and other property purchased with such rents and profits ; they would belong to the husband and be liable to his creditors ; . the act of 1839 being designed only to save the specific property for the wife. Grand Gulf Bank v. Barnes, 2 S. & M. 165 ; Beatty, v. Smith, 2 S. & M. 567. And 'that, act does not alter the husband's right to the usufruct of the wife's real estate ; and a lease of her land by him Joe- fore and since that statute will be good, and his creditors will be en- titled to the proceeds of the lease. Baynton v. Finnal, 4 S. & M. 193. 30. See Evidence,23'7 ; husband incompetent witness for wife, on trial of right of property. 31. Where a wife's distributive' share in her father's estate accrues after her marriage, it enures to the husband alone, and he can sue for- it without joining his wife ; there- fore, where G., prior to the act for HUSBAND AND WIFE. 283 the preservation of the rights of married women, married F.,-wh6 was the daughter of D. F., Who died after her marriage, and G. ap- plied to the probate court, in his own name, for his .wife's distribu- tive share in her father's estate ; and G.'s wife filed a "counter peti- tion, claiming the distributive fund iij her own right, and averring the insolvency of her husband 5 Iield, that G. was entitled to the fund, in hi? own right, to the exclusion of his wife, Mc'Gee \. Ford, 5 S. & M. 769 ; and her death, therefore, before the money is paid over to the husband, will not affect his right ; and . if the husband sue alone for his wife's distributive portion, and the probate court se- cure it to him, and it does not affirmatively appear that the wife's right accrued before coverture, the decree will be upheld. Henderson v; Guyot, 6 S. & M. 209. 32. See Dou^r, 26 ; a marriage to a second, during the life of a first wife, who has never been di- vorced, is absolutely null, and, though the parties live together for twenty-five years, as man arid wife, the widow will not be endowed of his land. 33. It was settled, at common law, that the contract of a married woman was void ; and the act of 1839, familiarly known as the ',' woman's law," does' not extend her power of contracting, or of binding herself or her property; its effect is to take away from her all power to subject her property to the payment of her contracts, except in the particular mode specified in the statute, by deed, acknowledged separate and apart from the husband. Davis v. Foy, 7 S. & M. 64, The genereJl rule, at common law, is, that a feme co- vert, haying a separate estate, acts with regard to it as a feme soli, ; biit that rule is chaiiged by the act of 1839 of this state, which pro- vides that the slaves owned by a feme covert, under the provisions of that act, might be sold by the joint deed of the husband and wife, executed, proved and recorded, agreeably to the laws then in force, in regard to the conveyance of the real estate of a feme covert, and not otherwise; since the act of 1839, therefore, afems covert can- not convey^or incumber her sepa- rate slaves, or charge ■ them in. any manner in any other mode than that pointed out in the statute ; they cannot therefore be subjected to the joint note of the husband and wife, though given for articles necessary for the plantation of the wife and housekeeping purposes. Frost v. Doyle, 7.S. & M. 68. Nor can such slaves be subjected to the sat- isfaction of a judgment rendered on a forthcoming bond, against a married woman who executed, the bond jointiy with her husband, as sureties for a third party. Berry V. Blandi 7 S. & M. 77. The rule, at common law, would be different ; the fact that she had contracted a debt during coverture, either as a principal or as a surety for her husband, or jointiy with him, would be held prima facie evidence, to charge her separate estate without any proof of a positive agreement or intention so to do. lb. 34. A judgment cannot be ren- dered, in a court of law, against a married woman, on a promissory note made by her husband and her- self ; she cannot be sued at law, either before or since the act of 1839. Davis v. Foy, 7 S. & M. 64. 35. A deed to a rharried woman is not void ; as to third persons it is 284 HUSBAND AND WIFE. valid, whether she can be compel- led- to pay the purchase-money or not that concerns the vendor alone ; where therefore B. conveyed a lot of ground to J., a married woman, and she and her husband sued H. in ejectment fbr the lot, held, that H. could not object to the validity of J.'s title, because of her cover- ture. Harmnn v. James, 7 S. & M. 111. ■36. The marital rights of the husband to the property of his wife cannot be defeated unless an inten- tion be clearly expresse^d that the property is to be 'held for the sepa- rate use of the wife ; nothing is to be implied against him. Williams V. Clairborne, 7 S. & M. 488. And ' also, same case, 1 S. & M. Ch. 355. 37. W. (in debt) and H. (pos- sessed of large property)' being about to marry, by deed of settle- ment before the marriage convey to a trustee for H.'s sole and sepa- rate use, all her property and the interest, income, and proceeds thereof in trust ; 1. For the use of W. and H, for their natural lives, subject to disposal by H. by will ; 2. That H. should have, during her life, full control over the property, and that it should not be subject to W.'s debts or his control ; 3. That the trustee might sell when request- ed ; held, that W., on the death of H., had no right in the property thus conveyed, or to a participation in the proceeds, income, or profits of it. lb. 38. Where, in one clause ,of a deed of marriage settlement be- tween W. and H., the property was settled in trust for the use of W. and H. for their natural lives, and W. covenanted in the deed, that the whole property and its proceeds should belong to H. for her sole and separate use ; held, that he was estopped by his covenants from set- ting up any claim to the property on the death of H. lb. 39. Where, .upon the bil]_ of the wife against the husband, a decree a vinculo matrimonii has been granted, the mere omission in that decree to provide for the alimony of the wife cannot affect the wife's right to such a provision "at a sub- sequent time by a separate and dis- tinct proceeding. Shotwell v. Shot- well, 1 S. & M. Ch. 51. 40. A circuit court having de- creed a divorce a vinculo matri- monii, at the instance of the wife, the superior court of chancery has jurisdiction of a bill by the divorced wife against the husband to have alimony allotted to her ; a decree for alimony, resulting from the de- cree for a divorce, but not being idgntical with it, or a necessary part of it. lb. 41. The husband has no power, without the consent of the wife, to convert her real property into per- sonalty, so as to change the course of descent, or right of succession. Fletcher v. Wilson, 1 S. & M. Ch. 376. * 42. S., by deed of gift, conveyed to !p". certain negroes in these words : " in trust for the use and benefit of my daugliter, Ann, and her lawful heirs ; " "in trust for the proper use and benefit of the said Ann and her heirs forever;" held, that these words conveyed to the. daughter an estate for her sole, separate, use, and that during her life it was not subject to the debts of the husband. Warren v. flaZey , 1 S. & M. Ch. 647 43. Where personal property is conveyed to the wife and her heirs, for her sole and sepairate use, and she dies, the husband surviving is entitled to the property ,_;Mre mariti, in preference to her next of kin. lb. HUSPAND AND WIFE. 28& 44. Where the husband pur- chased a tract of land with the mo- ney of his wife, derived from her separate estate, the purchase Will create a resulting trust in her favor, and the husband will be deemed to convey the land to the wife ; and .where the husband, by improper and false pretences and repeated importunities, induces the wife to convey a part of her separate es- tate by deed to his brother, without consideration, and for the husbapd's Own use, and with the fraudulent indention to strip the wife of her property, the brother will be corn- pelled to reconvey the property to the wife. Pulliam v. PuUi,cm, Freem. Ch. 348. 4]5.. Where a husband has aban- doned his wife, lives in adultery with another woman, and has fraud- ulently attempted to cheat her out of her property, a decree of djvorce from bed and board will be, decreed. B. 46. A feme covert, claiming a separate estate, cannot sue her hus- band by her trustee ; she must do so by her next friend ; but it,seems it is doubtful how far the defect can be noticed under a general de- murrer. Hunt, V. Booth, Freem. Ch. 215. 47. L. put H. in possession of certain slaves, to belong to H. on payment of a certain sum ; H. fail- ed to pay, and L. conveyed the slaves to T. in trust to secure M., who had advanced the money for H. ; in its repayment, and in the payment of an additional sum due by H. to M., with power to T. to sell the slaves if H. failed to pay. and if he did pay M., then T. was to convey the slaves to H.'s wife for life, with a limitation in favor of her children by name. H. afterwards paid M. the sums of money secured by the slaves : Held, in an attempt by the judgment creditors of H. to subject the slaves to his individual debts, dontracted prior to the pay- ment of the money by him, that they were liable to the payment thereof, lb. 48. The intention to create a separate estate for the wife must be clearly apparent, in order to ex- clude the husband from the right to personal property which is given to the wife ; the intervention of a trus- tee has never been held to go the length of vesting a sole and sepa- rate estate in the wife ; words to that effect must be used. li. 49. Marriage is a valuable con- sideration in law ; the wife is re- garded as a iona fide purchaser where there is a marriage settle- ment ; will hold the property settled against creditors whose debts are not liens ; where, therefore, a hus- band, previous to marriage, agreed! to settle $2-,000 on- his wife, and the agreement was recorded ; and after marriage, and while free from debt, he bought two slaves which his wife agreed to take in lieu of the settlement ; though no record, was made of it, and the husband and wife continued jointly possess- ed of the slaves ; held, that they were iiot subject to the subsequent judgment creditors of the husband. Armfield v. Armfield, Freem. Ch. 311. 286 IMPARLANCE TERM. — INFANTS. IMPARLANCE TERM. 1. The /granting an imparlance term affects the reniedy merely, and therefore applies to suits brought before its passage. Woods v. Buie, 5 How. 285. 2. Under the act of 1840, grant- ing the . imparlance term, each de- fendant is entitled, as a matter of right, to a continuance of his cause to the term succeeding that in which he is brought into court ; the circuit court has -no discretion ; and this is the case whether all the defendants in the same suit are served with process at th§ same term or not ; each defendant is entitled to a term, even though the other defendants may have plead at a former term, and it will be error to force a trial of a case at a term to which one of the defendants has been served with process and qlaims a continu- ance of the case. Maury v. Com- mercial Bank of Natchez, 5 S. & M. 4]. IMPROVEMENTS. How far improvements made with knowledge of adverse title will be set off against rents, see Vendor and Vendee, 36 ; and Executor and Administrator, 145-148.. INADEQUACY OF PRICE.' 1. It seems that mere inadequa- cy of price is not, of itself, suffi- cient to set aside a sale made at public auction ; yet if land sold at public auction fbr the same price that land usually sold for at public auction, it seems that, though the price brought was greatly less than the supposed worth of it, the sale . would not' be set aside for inade- quacy. Newman v. Meek, Frpem. Ch. 441. See Sherijf's Sale ; when sale under execution is void for inade- quacy of price and fraud of pur- chaser. 2. Mere inadequacy of price, without fraud, is not a sufficient ground for setting aside a sale of land under execution. Delafield v. Anderson, 1 S. .&. M. 630. INDIAN. 1. See Criminal Law, 13; as to indictment for settling on Indian territory. ■ 2. See Dancing Rabbit Creek Treaty ; for claims of Indians un- der. • 3. See Chickasaws and Chicka- saw Treaty ) for claims of Indians under. 4. See Evidence, tit. Witness. Indian, competent witness. INFANTS. 1. An infant is in esse, from the time of conception, for the purpose of taxing any estate which is for INFANTS. — INJUNCTION. 287 his benefit, whether by descent, de- vise, or under the statute of -distri- bution, provided, the infant he born alive, and after such a period of foetal existence, that its continu- ance in life might be reasonably expected ; such right is inchoate, and will not be completed by a pre- mature birth ; an infant, born eight months and twenty-one days after the death of his sister, will be a distributee, of her estate. Harper V. Archer, 4 S. & M. 99. 2. An infant who has disposed of his personal property, and has done no act, since his coming of age, to confirm the contract, and has pur- sued his remedy in good time after his minority, is entitled to recover it back ; and that, although the property may have passed out of the possession of the infant's ven- dee into that of a third person, a purchaser for a valuable considera- tion, without notice ; nor does the law, in rescinding the contracts of infants, draw distinctions between contracts executed and executory ; where, therefore, A. being an in- fant, bought of E. a tract of land for $8000, and gave, in payment, five slaves, and his notes for $375, and $1500; and the . slaves were afterwards sold to H.„ under execu- tion, as the property of E. ; it was held, that A., on coming of a!ge, might, by bill in equity against E. & H. rescind the contract, and re- cover the slaves. Hill v. Ander- son, 5 S. & M. 216. 3. In a suit in 'chancery, against both adult and infant defendants, a decree rendered in favor of the complainants against all the de- fendants, upon pro confesso, against the adult defendants, and the an- swer of guardians ad litem for the infants, without any proof, will be erroneous, as to the infants, even though time be reserved in the de- cree to the infants, after they come of'age, to show cause against it ; a pro confesso against an infant, will not authorize a, decree against him ; there rriust be proof; and a reser- vation of a right to show cause against the decree, after the infant attain majority, does not cure the error ; whether such reservation extends only to defects and errors in the decree itself, and is barred by a sale under it .? Quare ? Hargrove v. Martin, 6 S. & M. 61. It extends only to errors in the decree ; he cannot reinvesti- gate the subject-matter of the suit, nor can he redeem mortgaged pre- mises which have been sold ; nor will a decree against an infant ren- dered for the sale, instead of a tech- nical foreclosure of mortgaged pre- mises, which gives no day after their coming of age to show cause against it, and rendered, without a guardian ad litem for them, or the bill being taken for confessed, will not, for such irregularities, be void. Smith v. Bradley, 6 S. & .M. 485. See Chancery, tit. Infants. INJUNCTION AND INJUNC- TION BOND. 1. Upon issuing. an injunction, the clerk must indorse on the writ, " its operation is to be suspended until bond is given," and it will not be operative until a bond be given by the parties. Whether adminis- trators bound tcf give bond, quare ? Davis V. Dixon, 1 How. 64 ; yet if the clerk issue the injunction, though no bond be given, the ser- vice of the injunction will be obli- gatory, and be an excuse to a she- riff for not executing a writ against 288 INJUNCTION. — INSt&UGTtONS. which the injunction was prayed. JhicMarih v. Milhaps, 7 S. & M. SOS. 2. See Evidence, 185 f as to how for injunction bond void for uncer- tainty ; and how far parol proof ad- iSiisSible to explain its uncertainty. 8. Sete Judgment, Ab ; an injunc- tion does not take away lien. 4. When the injunction of a jtidgment at law is dissblyed, the plaintiff therein may institute in- stant proceedings on the injunction bond against all the paMieis thiereto, '.Without the issuance oF an execu- jion and its return upon the judg- ment at la* since the dissolutioti of "the injunction ; and after such dis- solution and action brought on the b'ohd, the issuance of ah execution and the giving and forfeiture of a forthcoming bond on the original judgment will not bar the action on the injunction bond. Hhtrisdn v. B'alfoiir, 5 S. & M. 301. 5. Where a subpoena and injunc- tion arO combined in the' same writ, it is the duty of thfe clerk out of whose oiEce the subpoena issues, to indorse upon it that its effect is suspended as to the injunction until the party execute sufficient bond ; until the bond is executed the writ has not the efficacy of an injunc- tion ; but where an injunction is is- sued on the iSat of a. judge to the ■clerk, and the fiat requires a pre- liminary bond, the issuance of the injunction is sufficient evidence to the party on whofti it is served that the bond #36 given, and he must obey it ; though it turn out that no bond was given. I)ucki£orth v. 'MiZZsdj7S, 7 S. & M. 308. 6. The statute authorizing circuit judges to grattt injunctions " withip iheiT refepettiVO cirOuits" limits their power to cases whioh have origina- their jurisdiction extends ; and fen injunction in a case originating and to operate beyond their distritfts, granted by a circuit judge, is void. Mdntgdmery v. Commercial Bank of Rodney, I S. & M. Ch. 632. INSTRUCTIONS. -1. It is not error to refuse 'io charge the jury upon . a certain point, unless the bill Of exceptioflS shows that the point arose in the case. Miles v. Myers, Walk. 379. 2. Vhe coutt need not give in- structions on abstract points of law. Pfim V. Kittridge, Walk. 390. 3. Iti an action for a malicious prosecution, where there has been testimony on both sides, and the facts have not been found by the jury, it is error to instruct them " that admitting all the testimony, in ftivor of the plaintiff, to be true, yet he had not shown a wantof» probable cause." Furife^ v. Pm"- ter. Walk. 442. 4. The court is nOt bound tb charge the jury, unlesis called Uptm. Montgomery v. Qriffin, Walk. 4S3. 5. A.a er¥oneous charge upon aft abstract point, which did not arisfc in the case) no ground for reversal. Gamer v. Collins, Walk. 518. 6. It is error, under the ^statute, for the circuit court to charge-tiffi jury on points not called for by either paAy. t)avis v. TiernM, 2 How. 786. Yet the law restraining the judge, must receive a liberd construction, apd where, therefore, the instructions of the judge were in response to but the reverse irf those asked, it will not be error. 1 Catptew v. Cdnwoan, 4 How. 370. ted within the districts over which I Or it will not be' error, if it fee sub- INSTRUCTIONS. —INSURANCE. 289 stantially that which was asked by counsel. Vick v. Peck, 4 HoWi 407. Nor will it be error for the court to qualify the instruction asked, so as to make it conform to the law. Walker v. McDowell, 4 S. & M. 118. 7. The court may refuse a charge, partly cori'ect and in part erroneous; it may also refuse a charge not pertinent to the case ; and all instructions must be con- strued, with reference to the facts of each case, Martin v. King., 3 How. 125; O'Reilly \. Hen- dricks, 2. S: & M. 388. And in- structions perfectly correct in them- selves, may be refused, and the re- fusal will not be ground of error, unless the evidence is embodied in the record, that their applicability and relevancy may be seen. Loring v. Willis, 4 How. 383. 8. An instruction on an abstract principle of law, though correct in itself, may be refused, if it be not applicable to the case, or be calcu- lated to mislead the jury. Newman V. Foster, 3 How. 383. 9. Where the jury have given a correct verdict, it will not be set aside for erroneous instructions of the court, where instructions cor- rectly given on those points, could not have changed the result. Hill V. Calvin^ 4 How. 231. So, also, where .the verdict is according to the law and evidence, and the case comes up on a refusal to grant a new trial. Baynton v. Fimwiil, 4 S. & M. I9a 10. A refusal • to give instruc- tions, the relevancy or application of which, do not appear, is not ground of error. Kliffield v. The State, 4 How. 304; Myers v.: Oglesby, 6 How. 46. 11. Although the court cannot charge the jury, as to the weight 25 of evidence, yet the court may, when the plaintiff wholly fails to make out his case, instruct the jury to find for the defendant. (See this case for one, where the proof on the part of the plaintiff failed to make out his case.) Perry v. Clarke, 5 How. 495. 12. Where the law has been already correctly stated to the jury, on a given point, it will not be er- ror to refuse a charge on the same point, not strictly applicable to the testimony. Ellis v. Commercial Bank of Natchez, 7 How. 294. 13. It is not the province of the court to say to the jury, that from certain facts proved, certain pre- sumptions arise ; such presump- tions are for the jury ; yet, if the court do so instruct the jury, but immediately qualify it by adding that the jury must weigh all the testimony, apd form their own con- clusion, whether such presumptions were true, and that positive proof was not necessary, the verdict will not be disturbed. Dickson v. Moody, 2 S. & M. 17. 14. After the jury have retired to consider of their verdict, it is er- ror for the court to instruct them, at their request, without the consent of the parties, on. a matter of law. Taylor v. Manley, 6 S. & M. 305. INSURANCE. 1. Where, in a policy of insur- ance on cotton shipped on a steam- boat at Natchez for New Orleans, the cotton was valued at seventy dollars per bale, and in the voyage a portion of the cotton was injured ; held, that the priterion of damages which the insurance company would have to pay, lyould be the propor- tion which the ascertained amount 290 INSURANCE. of damage on 6ach bale bore to the value fixed on each bale by the pol- icy ; if, therefore, the loss were ten per cent, on the cotton injured, and the valued price seventy dollars per bale, by paying seven dollars on each bale injured the insurers would discharge themselves. Natchez Ins. Co. V. Buckner, 4 How. 63. 2. It is a proper mode* of ascer- taining the percentage of loss on damaged cotton, insured at a valued price, to have it appraised by cotton brokers, qualified to judge of its val- ue, who will declare the rate of de- preciation, which, with the cost of saving the cotton by the- assured, will constitute his damages ; as, if cotton were valued at seventy dol- lars a bale, and the rate of deprecia- tion were thirty per cent, on the in- trinsic value of the cotton, that sum, with the ascertained cost of saving the cotton, will be what the assured will be entitled to. lb. 3. The insurers are not bound, where the. insured articles are val- ued, to pay on a partial loss the difference between what the dam- aged goods will sell for at auction, and the agreed value ; the ratio the injury bears to the sound article, is tlie criterion of damage ; and if the assured, in case of partial, injury, sell the insured 'goods when they ar- rive at the port of destination, the expenses of the sale will fall on the assured. lb. 4. In case of a valued policy on a loss by injury to the vessel, the charges for which the insurers are liable, are those extraordinary ones which happen in consequence of the wreck ; all the ordinary charges in- cident to the transportation are, in such a policy, supposed to be cov- ered by the, valuation ; it would 'be otherwise if the policy were an open ■one. lb. 5. Where it was the custom, on an injury having happened to in- sured cotton, to have the cotton thus injured appraised, to ascertain wheth- er its damage exceeded ten per cent., and after that appraisement to sell the damaged cotton at public auction, and that the price it brought at such sale furnished the true crite- rion for ascertaining the' damage dope and the value of the damaged article, it was held competent, in an action on a policy to recover dama- ges for injury to insured cotton, to prove the custom, the appraisement under it, the sale at auction of the damaged article, and the value of the sound article at the port of arri- val, with the view of ascertaining the amount of loss the insurers would be liable for. Stanton v. Natchez Ins. Co. 5 How. 745. 6. In marine policies of insur- ance, which apply also to the navi- gation of rivers, the assured impli- edly warrants seaworthiness, proper documentation, not to deviate, and that the goods shall be properly stored ; all of which, except proper documentation, extend to the owner of the goods ; any voluntary devia- tion, therefore, from the contract of insurance, even though the risk be not increased thereby, discharges the underwriters ; therefore a steam- boat, goods on which were insured against the perils of the river, of fire, and all other perils, losses, and misfortunes that might happen in the nav^ation from port to port, took a brig in tow ; held that the taking a brig in tow was a deviation from the policy, and discharged the underwriters as to the cargo ; the officers and crew of the boat being, prior to the loss, agents of the as- sured after abandonment of the in- surers. Natchez Ins. Co. v. Stanton, 2 S. & M. 340. INSUKANCE. —INTEREST. 291 7. The principle that the under- writers are liable for a loss, the proximate cause of which is one of the enumerated risks, though the re- mote cause may be traced to the masters and mariners, has never been extended to a case of j^olunta- ry deviation. Ih. 8. It seems that the insurers, are not liable for any loss for which the owners of the ship are answerable to the shippers. lb. 9. Barratry is an offence which can only be committed against- the owners of the vessel, and is not cov- ered by the ordinary provisions of a policy. lb. 10. An advertisement that an insurance company would insure goods upon certain enumerated boats, is at most but a waiver of the implied warranty of seaworthiness. lb. 11. The usages of the insurance offices of New Orleans, La., cannot affect the insurance offices of Nat- chez, Miss. ; nor will an alleged iisage of towing boats on the Mis- sissippi river by steamboats, unless shown to be so general and so well known that it was fair to presume the parties contracted with refer- ence to it, affect the liability of in- surers, lb. INTEEEST. 1. Interest may be allowed by the jury, on an open account, though there be no proof that inter- est was agreed to be paid by the defendant. Wiltburgev v. Ran- dolph, Walk. 20. 2. English rule of interest, at four per cent, per annum, computed on- legacies charged on personal property, at one year from testator's death, adopted. Brovmlee v. Steel, Walk. 179. 3. A note promising, to pay a specified sum, being '* for money loaned at forty per cent, until paid," is a contract for a loan of money, at that, rate of interest, and must be enforced under the consti- tution of the state, which, prior to 1821, permitted such contracts. Loury v. Loury, Walk. 207. 4. By law, in .this state, judg- ments in 1806, bear no interest ; and statutes regulating interest, should bear no retrospective effect. Eas- iin V. Vandorn, Walk. 214. 5. Where the circuit court has jurisdiction of sums exceeding fifty dollars, if the plaintiff declare on a note of that amount exactly, he must also- declare for interest. Thomas v. Miller, Walk. 324. 6. Where the rate of interest is specified in a foreign decree, on which decree the action is based, it need not be proved by other evi- dence. Whitaker v. Comfort, Walk. 421. 7. On a judgment, by default, founded on a note made in the dis- trict of Columbia, a writ of inquiry is necessary to ascertain the rate and amount of interest. Fretwell V. Dinsmore, Walk. 484. 8. See Contract, 17 ; as to when specific damages or interest only recoverable. 9. See Bills of Exchange and Promissory Notes', 23. Interest incident to debt, and clerk will cal- culate it on judgment, by default on note. 10. See Bills of Exchange and Promissory Notes, 31 ; as to inter- est on damages for protest. 11. See Practice, 27. When error in calculation of interest will be noticed by high court. 12. A note executed in Missis- 292 JEOFAILS, STATUTE OF. sippi, and payable in Louisiana, with ten per cent, interest, in the absence of all proof of the legal in- terest of Louisiana, will not be usu- rious. Martin v. Martin, 1 S. & M. 176, A contract is governed by the law of the place, where it is to be performed ; and where a note is payable in a different state, the rate of interest in that state must be proven, as a fact, to the court, where none is expressed on the face of the note. Swett v. Dodge, 4 S. & M. 667. And where the. record does not show what the rate of interest of the foreign state is, the verdict of the jury will be pre- sumed to be correct, though it ex- ceed the legal irate of interest of this state. Henry v. Halsey, 5 S. di M. 573. 13. A note, payable in the dis- trict of Columbia, on the Maryland side thereof, will bear the .rate of interest of the law regulating that portion of the district, which rate not being judicially known to the court, must be proved. lb. JACKSON, CITY OF. The claimants of lots in the city of Jackson, under the law of 1822, granting preference on certain terms, one of which was, that the commissioners on the part of the state should designate such lots as were to be preferred, must show that the lots . to which they set up their claim were so designated. Bin- gaman v. Phillips, 1 How. 285. JEOFAILS, STATUTE OF. 1. In dn action on a contract to deliver nine hundred bales of cot- ton, on demand, the omission to state in the declaration the con- sideration of the contract, is a fatal one, not cured by verdict. Minor v. Michie, Walk. 24. 2. An issue and verdict cure all defects in pleading, where the issue necessarily involves the proof of the facts omitted to be set forth in the pleadings ; so that the omission to state the date of the promise, and the value of the articles sued for, after plea and verdicj, will be cured. Delahuff v. Reed, Walk. 74. 3. See Ejectment, 1, 2. Hovy far statute of, cures defective de- mise, when laid from heir in life of ancestor. Winn v. Cole, Walk. 119. . 4. Mistake in form of action of trespass, for trespass on case, not cured by statute of jeofails. McFar- land v. Smith, Walk. 172. 5. Defects in declaration cured by judgment by default. Irwin v. Williams, Walk. 314. 6. Verdict cures omission to in- sert the ambunt of damage in the declaration, and cures defective averments; but not where a total JEOFAILS, STATUTE OF. 293 want of title appears. Poindexter V. Turner, Walk. 349. 7. A verdict and judgment cure all defects which might have been taken advantage of by demurrer. Whitaker v. Comfort, Walk. 421. 8. Where a bad replication is filed, and issue taken on it, and ver- dict and judgment, the defect will be cured by the verdict. Keitliley v. Borum, 2 How. 683. 9. See Assumpsit, 7 ; error of assumpsit on sealed instrument, cured by verdict. 10. Misjoinder of issue, or a ver- dict on an immaterial issue, will be cured' by the verdict. Chichester V.' JJaggelt, 2 How. 863. 11. The statute of jeofails cures a failure to join in an issue of non assumpsit, by adding the similiter. Smith' V. Warren, 2 How. 895. And where, in an action on a note against an indorser, the declaration failed to allege due demand and notice, or alleged demand and no- tice on a day subsequent to the ma- turity of the note, and a judgment by default was rendered, the defect is cured by the statute of jeofails. Winn V. Levy, 2 How. 902 ; Wells V. .Woodley, 5 How. 484. ' 12. Where the plaintiff, in an action on a bond described himself as both assignee and payee of the bond, and judgment by default was taken thereon, the error will be cured by the statute. Eagsdale v. Caldwell, 2 How. 930. 13. See Bills of Exchange and Promissory Notes, 37 ; defect in allegation of protest at sight cured by statute. 14. A replication in these words, " issue to second plea,"" with the name of the plaintiff's. counsel to themf though bad on demurrer, will be cured by the statute. Pidk- elt V. Ford, 4 How. 246. 25* 15. Th6 statute of jeofaSs, after a judgment by default, cures a va- riance between the indorsement on the' writ and the amount demand- ed in the declaration. Shrock v. Bowden, 4 How. 426. 16. So also where the declara- tion averred the note to be payable at a time anterior to its date. lb. 17. See Verdict, 9. Cures issue on negative pregnant. 18. Where, in an action on a money-bond, by an assignee, the declaration did not aver a non-pay- ment of the money to the payee ; held, that the defect was cured by the statute. Clarke v. Gregory, 5 How. 363. 19. The statute of jeofails will not cure a failure to decide upon a demurrer to a plea in the- Cause, even though there has been a ver- dict on another plea. Marlow v.. Hamer, 6 How. 189. 20. A defect in a replication,- in. these words, " replication in short, by consent," is cured by verdict.. Halsey v. Pinckard, 6 How. 278. 21-. Where an action of assump- . sit is brought, instead of on the case specially, and no objection is taken to it till after ^erdict, the de- fect is cured. Cartwright v. Car- penter, 7 How. 328 ; Kellogg v. Budhng, lb. 340'. So if it be an action of assumpsit, when it ought to be debt. Bone v. McGinley, lb. 671. 22. See Scire Facias, 10 ; a discontinuance cured by verdict, of parties to a sci. fa. to revive judg- ment. 23. After judgment, on inquiry of damages in attachment, the fact that ■ attachment was for unliqui- da,ted damages, and the declaration in trov.er, will be cured by the stat- ute. Redus V. ■ Wofford, 4 S. & M.. 579. 294 JOINT TENANTS. — JUDGMENT. 24. Where the declaration fails to make out a case against the ds' fendant, and he, instead of demur- ring, pleads to the action, and a verdict and judgment are given against him, it seems that, under the statute, the defect in the plead- ings will be cured, and the judg-. ment be undisturbed ; but aliter, if the evidence be embodied in the record, on the overruling a motion for a new trial. Reaves v. Dennis, 6 S. & M, 89. 25. Where a writing obligatory, made by two, is sued upon, but only one of the ' obUgors is sued, arid he files two pleEis ; 1. Payment by one obligor. 2. Payment by the other obligor; and a simple replication is filed to both pleas, professing to answer both, on which issue was taken, and a verdict ren- dered for the plaintiff,^ held, that the mispleading was cured by the verdict, the defendant should have demurred. Barrow v. Wade, 7 S. & M. 49. 26. A failure to join in issue by a similiter, is cured by verdict. Harmon v. James, 7 S, & M. 111. JOINT TENANTS. Under a joint conveyance the possession of one will be deemed the possession of both, unless there is proof of an ouster. James v. Rowan, 6 S. & M. 393. JUDGMENT. 1. A duly authenticated tran- script of a judgment obtained in another state, against a citizen of this, upon proceedings by attach- ment, without the Service of pro- cess upon the defendant, is not evidence in an action of debt on such judgment against the defend- ant therein, in the courts of this state. Chew v. Randolph, Walk. 1. 2. Judgments against deceased persons are nullities. Gerault v. Anderson, Walk. 30. 3. Aftei* plea of payment, judg- ment by default is erroneous. Selser v. Wilkinson, Walk. 108; so also, if there be any plea filed. Dickson \. Hoff, 3 How. 165 ; and if a plea in the record, plaintM" must show by the record it was not there when judgment was taken. Irving V. Montgomery, 3 How. 191; Purvis v. Forbes, 5 How. 518. . 4. Ajudgment of the court, where there has been no plga filed or judgment by default taken, is er- roneous. Spain V. Winter, Walk. 152. 5. Forthcoming bond is satisfac- tion of original judgment. Stewart V. Fuqua, Walk. 175. Connell v. Lewis. lb. 251. 6. Upon a judgment revived by scire facias, the execution should issue on the original judgment. Eastin v. Vandorn. Walk. 214. 7. A verdict without judgment, will not sustain the plea of former recovery. Butleir v. Stephens ^iiSi.. 219. 8. On sustaining demurrer to plea, the judgment should be res- pondeat ouster. Douglass v. Hen- dricks, Walk. 230 ; Southward, v. McLaughlin, lb. 325. 9. Payment to the clerk of the court, is no satisfaction of the exe-- cution or judgment. Lewis v. Johnson, Walk. 260. 10. Judgment at law, how far bar to relief in equity. See Chan- cery, 21, 23, 35. 11. Judgment by default cures JUDGMENT. 295 defects in declaration. Irwin v. Williams, Walk. 314. 12. Judgment by default against indprser of a note is final without the intervention of a jury. Owen V. Little, Walk. 326. 13. Where two judgments, whether by default or otherwise, were rendered on the same day, preference will be given to the one first entered on the minutes. Bi^ ham V. Merriti, Walk. 430 ; Smith V. Ship, 1 How. 234. Where money is levied on executions, that which issues on the oldest judgment will be entitled to it. Grand Gulf Bank V. Henderson, 5 How. 292 ; Carleton v. Osgood, 6 How. 285. See infra, 45. 14. An attorney at law, cannot assign judgment without express authority from the plaintifi". Head v. Gervais, Walk. 431. 15. On a judgment by default on an award for a specific sum, no writ of inquiry is requisite. Rev. Code, 120, § 97 ; Chace v. East, Walk. 439. 16. See Execution, 11 ; as to whether injunction-destroys lien of judgment. 17. The act of 1824, p. 105, § 12, makes all judgments liens on the property of the defendant from the time of entering them ; the first judgment efttered will have the first lien ; and where three are entered on the same day, and nothing to show which were entered first, they will all be of the same date. Burney v. Boyett, 1 How. 39; Smith V. Ship, lb. 234; Grand ■ Gulf Bank y. Henderson, 5 How. 292 ; Andrews v. Wilkes, 6 How. 554. 18. Whether the court will in- quire into the fractions of a day to ascertain priority of judgment. Qucere ? It will not look to the minutes of the judge, which are no part of the record, to siscertain priority, lb'. 19. Where the judgments are of the same date, the one whose execution was levied first on the property of the , defendant, will have the right to prior satisfaction out of that property; such levy being to the extent of the value of the property a satisfaction of the judgrpent. lb. 20. See Evidence, 30 ; as to how far judgment, evidence, ex- cept between parties and privies. 21. In actions in form ex con- tractu, against more than one de- fendant, the verdict ■ and judgment must be against all or none. Jones V. McGahey, 1 How. 128. 22. The judgment of every court of competent jurisdiction is holden to be correct, unless the error ap- pear on the record. Byrd v. The State, 1 How. 163. 23. On Judgment by default on note, the clerk will calculate in- terest. See Bills of Exchange and Promissory Notes, 22. 24. A scire facias to revive a judgment is in the nature of an ac- tion, and should show the reputation and character of the parties sought to be charged, and the mode by which that character devolved on them. Pickett v. Pickett, 1 How. 267. 25. A joint judgment bad as to one, will he bad as to all. Pitt- man V. Planters Bank, 1 How. 527. 2'6. See. Attachment, 9, 12 ; for judgmeni; in ; and .how far void for uncertainty. 27. See Assumpsit, 6 ; when judgment greater than damages laid. 28. See Comity, 3 ; how far barred by discharge under insol- vent law of another state. 296 JUDGMENT. 29. See Limitations, Statute of, 10 ; for limitation of judgment. 30. Nil debet bad plea to action of debt on a judgment. Williams V. Guignard, 2 How. 722. 31. See Bills of Exchange and Promissory Notes, 29 ; for effect of judgment by default, on right of parties. 32. Where the action is debt, and the judgment is in damages, it will be a mere clerical error, and not ground to reverse. Smith v. Nolen, S How. 735 ; Downs v. Ladd, 4 How -40 ; but see contra, Wilkinson v. Patterson, 6 How. 193. 33. Judgment by default will be set aside by this court, notwith- standing refusal of inferior court to do so, and upon affidavit of merits and payment of costs, when the application was made before an opportunity for trial had been lost. Porter v. Johnson, 2 How. 736. 34. A memorandum in the re- cord in these words, " motion to quash forthcoming bond, by the defendant in this case and the exe- cution issued thereon ; motion sus- tained ; forthcoming bond, and execution issued thereon quashed, the bond being irregularly taken," is too uncertain to constitute a judgment of the court, and will not be evidence in a suit against the sheriff who took the bond, for having taken a void bond. Gridley y. Denny, 2 How, 820. 35. Judgments are evidence only between parties and privies, lb. 36. A judgment by default final, on a declaration on a note, and containing the common counts, there being no bill of particulars, is not erroneous even though there be no discontinuajice as to the com- mon counts. Gridley v. Brigs, 2 How. 830 ; LiUard v. Planters Bank, 3 How. 78 ; or if- a plea of non assumpsit be filed to the com- mon counts. Rankin v. Sanders, 6 How. 52. 37. Where a judgment has been rendered in a cdurt of law, in an action of trover for property claimed under a. marriage contract, and in the suit at law the contract bus received a construction ; a court of equity will not take jurisdiction of a suit between the same parties, about the same property claimed under the same marriage articles. Hooke v. Wood, 2 How. 867. 38. Uflless there be a judgment by default first taken, a writ of inquiry cannot be executed. No- bles v. Christmas, 2 How. 885. 39. Where no execution has issued on a judgment on a forth- coming bond, for more than a year and a day after the forfeiture, it will be irregular to issue an exe- cution without a revival by scire facias, and the execution wUl be quashed on motion. Reeves y. Burnham, 3 How. 25. 40. It is irregular to take a judgment by default, unless the re- turn of the sheriff on the writ, shows that the process was execu- ted within the prescribed time be- fore court ; the statute makes it the duty of the sheriff to indorse on the writ where he received and where he executed it ; and if he fail to do so, no presumption will be indulged in favQr of it. Cal- houn V. Matlock, 3 How; 70. 41. Where the judgment of the inferior court is for a greater sura than that demanded by the suit, the judgment will be reversed ; if the excess', however, be remitted, the high court will render the proper judgment. Green y. Robinson, 3 How. 104. JUDGMENT. 297 42. See Bilk of Exchange and Promissory Notes, 37; for judg- ment by default and calculation of interest and damages for protest by- clerk. 43. A judgment rendered for " $500.14, the amount of the promissory note, in the declaration mentioned as the costs," is in- formal, yet substantially good. Warbington v. Norris, 3 How. 227. 44. Where there is a judgment against vendor, the vendee is a purchaser with notice. Phillips v. Lane, 4 How. 122. 45. A judgment lien may lose its priority by the act of the creditor, it is a mere security to be pursued with diligence and in good faith, and may be lost by laches ; where, therefore, the plaintiff stayed, his execution until the next term of the court, and agreed to stay it another term, and pending the stay the property was levied on by a junior execution and sold ; held, that the junior execution would be entitled to the money. Michie v. The Planters Bank, 4 How. 130 ; the lien can only be lost by act of the plaintiff; no act of the de- fendant will destroy it ; an injunc- tion, therefore, while it suspends the power to execute the judgment, does not affect its lien, and on the dissolution of the injunction, the lien will take effect from the date of the judgment. Smith v. Everly, 4 How. 178 ; it must be somS act of omission or commission of the older judgment creditor, that will postpone his lien; he may lose it by delay or laches, but mere delay to levy on property of the debtor, where the sheriff returns the exe- cution, nulla lona, vfW. not entitle a junior execution that finds the property and levies on it, to pri- ority ; nor the fact that there were doubts about the title to the pro- perty by which the junior creditor ran the risk of a lawsuit. Lucas V. Stewart, 3 S. & M. 231. The oldest judgment will always be entitled to the property, unless something has occurred since its rendition to discharge- its lien; a levy on sufficient personal pro- perty is a prima facie satisfaction, which may be rebutted by show- ing that the levy had been legally removed ; and the execution of a claimant's bond to levy the right of property, will be a legal amo- tion of the levy, and the lien of the judgment will be in full force. Walker v. McDowell, 4 S. & M. 118. 46. The lien of Ihe judgment not only extends to the property of the defendant, but also to money made on executions against him, while it is in the officer's hands ; and whether levied on the younger or older judgments, the oldest judgment will be entitled to it. lb. 47. Where money is made on executions, and the older judgment has the security of sureties on a forthcomig bond forfeited in the case, and the younger judgment has no such security, still the older judgment will be entitled to the money, and will not be forced to look to his security. lb. 48. See Evidence, 92 ; when judgment evidence against a privy in interest. 49. See Execution, 19 ;• how far variance between judgment and execution vitiates sheriff'? sale. 50. A judgment by default will be set aside on affidavit of merits and payment of costs, if the trial be not delayed thereby, though no reason . be given for not having 298 JUDGMENT. plead before judgment. Fore v. Folsom, 4 How. 282. 51. Where there was a plea by one of three defendants, and a verdict thereon in favor of the plaintiff, and a judgment following in the record against the defend- ants generally without any entry of judgment by default against those who had not pleaded ; held, that the judgment was regular. Rappleye v. Hill, 4 How. 295. 52. In an action on a joint note where one party makes default and the other pleads, separate judg-. ments may be rendered against each. Lynch v. Commissioners of Sinking Fund, 4 How. 377. 53. Ajudgment, on motion, against the sheriff and his sureties, is er- roneous, unless notice of the mo- tion has been.seived on all the sureties against -whom judgment is rendered. Torrey v. Jordan, 4 How. 401. 54. The record of a judgment in the minute book of the circuit court, is ftot evidence of the judg- ment ; the whole record should be produced, writs, pleadings and judgment. Lehr v. Hall, 5 How. 54. 55., Where, an application is made under the statute to amend a judgment, notice must be given to the opposite party. Horsey v. Peirce, 5 How. 173. 56. See Evidence, 104 ; certi- ficate of clerk of high court, evi- dence of reversed judgment. 57. If the original judgment is reversed on writ of error;, a forth- coming bond taken on execution on such judgment is void, and a formal ' motion need not be made to quash it. 'Hoy v. Couch, 5 How 188. 58. See Scire Facias, 9 ; sale without reviving judgment against deceased person, only voidable, not void. 59. See Execution, 28 ; agree- ment to stay, without actual stay of execution, does not destroy lien of judgment. 60. A sheriff's return of, re- ceived so much money in Union Bank bills, is not a satisfaction of the judgment. Tutt v. Fulgham, 5 How. «21. , 61. When a judgment is re- versed, the .parties will occupy the same position that they did bdbre its rendition ; where, therefore, a a judgment in ejectment had been rendered for the plaintiff, and he put in possession under it, and the judgment was afterwards- reversed, and while the plaintiff was thus in possession, he sold certain wood, cut by the defendant off of the land in controversy, the plaintiff in the ejectment suit, wUl be liahle to the' defendant for the value of the wood, in trover ; nor can such plaintiff in ejectment read the judg- ment and writ of habere facias pos- sessionem, by which he was put in possession, as evidence in his justification. Harris v. Newman ; 5 How. 654. 62. Judgment without service of process is void. Ayer v. Bailey, 5 How. 688 ; ' see Process, 12. 63. See Bills of Exchange and Promissory Notes, 3 ; when judg- ments against maker and indorser separately, and forthcoming bonds are forfeited, one on judgment againstj,maker, and the other against the indorser, one forfeiture will not be a satisfaction of the other ; but it would be otherwise if the suits were joint, on a joint, or joint and several liability ; in such case, bond given by one defendant would release the others not uniting in it. JUDGMENT. 299 64. Judgment by default on a note for a certain sum payable in cotton, is final. Rankin v. Sanders,. 6 How. 52. 65. A judgment against an ad- ministrator individually, in a suit on a debt due by his intestate, may be amended at any time to conform to the suit. Hoggatt v. Montgomery, 6 How. 93. 66. On demurrer to a suit on an administrator's bond, alleging as a breach a devastavit and the non- payment of a judgment rendered against the administrator, the judg- ment overruling the demurrer will be final without the intervention of a jury. li. 67. Void judgments may be at- tacked collaterally. See Executor and Adminislrator, 92. 68. The lien -of a judgment it seems may be destroyed by passive negligence in enforcing it, as well as by instructions not to levy, or giving a stay ; but what degree of passive negligence will destroy a lien it seems difficult to determine ; the mere fact that a younger judg- ment has used unusual diligence in ascertaining property and levying on it, will defeat an older judgment which has used only ordinary dili- gence. Roiinson v. Green, 6 How. 223. 69. But a junior execution that makes the money will hold it in preference to a senior execution not levied. lb. 70. See Pleading, 67 ; where demurrer to plea in abatement over- ruled, the judgment must be respon- deat ouster. ' 71. Where two are sued in as- sumpsit and the writ is returned " executed" on one and " not found" as to the other, and the former pleads and a judgment on verdict against him is rendered, and no dis- position made in the record as to the other defendant, it will be error. Davis V. Tiernan, 2 How. 786 ; Dennison v. Lewis, 6 How. 517 ; so, also, if judgment is rendered against them all. Hughes v. Evans, 4S..&M. 737. 72. Where there are several pleas, and issues are taken on some, and demurrers filed to others, if the demurrers, or eithe* of them, be overruled, the judgment will be final for the defendant ; where, there- fore, the record shewed a plea of general issue and two special pleas containing bars to the action, and there was a verdict and judgment rendered for the plaintiff on the general issue, arid no disposition made of the demurrer, the court of appeals will reverse the judgment on the verdict and render a judg- ment final for- the defendant pn ,the demurrers. Bailey v. Gaskins, 6 How. 519 ; yet it is in the discre- tion of this court to enter the judg- ment final or to grant the plaintiff leave to withdraw his demurrer and file a replication. Gwin v. ikf ' Car- rol, 1 S. & M. 351 ; and that leave should be granted when applied for. Vickshurg Water Works and Bank- ing Co. V. Washington, lb. 536 ; but its refusal by' the ■ court below is no ground of error. lb. 73. An- execution on a junior judgment may be levied on proper- ty bound by a senior judgment ; and in such case when a sale takes place under such levy the money will be appropriated to the junior judgment, and the property will be still subject to the lien of the elder judgment, and the junior judgment will be entitled to the money, even though the execution on the older judgment was in the hands of the sheriff at the time of sale, if it was not actually levied. Bibb v. Jones, 30.0 JUDGMENT. 7 How. 397 ; Commercial and Rail- road Bank V. Heldehurn, 6 How. 536; Goode v. Mayson, 6 How. 543 ; and the rule is tKe same whe- ther the older judgment be in the circuit, court of the United States or the state court. Andrews v. Wilkes, 6 How. 554 ; Commercial Bank of Manchester v. Coroner of Yazoo County, 6 How. 530 : and the rule is the same though the ex- ecution on the older judgment he levied on the same property on the day of, and before the sale of it under the junior judgment ; but the purchaser will take it subject to the lien of the older judgment. Calmes v. Ford, 6 S. & M. 190 ; if, however, both be levied together, the oldest will take it, if nothing intervenes to cause the loss of its lien. J. being a judgment creditor of V. sued out his execution; D., having an older judgment by three days, afterwards sued out his exe- cution, and both were levied the same day on two slaves of V. Be- fore the levy, J. gave an indemni- fying bond ; two days after it, D. gave a similar bond. Soon after and before the disposal of these le- vies, D. sued out an alias execution to a different county and had it le- vied on another slave of V., but afterwards, finding his first levy sufficient, and relying on it, he re- leased his second levy ; the slaves first levied on having been sold, it was held, the proceeds should be appropriated to D.'s judgment. Jen- nings v. Dennis, 6 S. & M. 379. 74. A judgment erroneous on its face will be reversed, though the bill of exceptions defectively sets out the evidence. 3. 75. A judgment recovered in one county is a lien on the property of the defendant in any county in the state. Commercial and Rail- road Bank v. Heldehurn, 6 How. 536. 76. Judgments at law are assign- able and courts of law will protect the rights of the assignee ; where, therefore, a judgment was obtained by a bank against one of its debt- ors, and a third person, at the in- stance of the judgment debtor, paid the amount of the judgment and took an assignment of it, and the bank credited the account of its judgment debtor with the sum thus paid, it was held no satisfaction of the judgment. Tombighy Railroad Co. V. Bell, 7 How. 216. 77. Where a judgment has been rendered against an intestate in his lifetime, and he die before satisfac- tion of it is had, and his estate is reported insolvent, the lien of the judgmeiit and its right to prior sat- isfaction out of the efiects of the intestate will not thereby be affect- ed ; but it would be otherwise with judgments against the administrator before declaration of insolvency ; they will only be entitled to their pro rata portion. Dye v. Bartleti," 7 How. 224. 78. Where a number of defend- ants are sued in assumpsit, and pro- cess is served on some and not on ofhers, and those on whom process is served make default, and a judg- ment final is entered against them, and the cause continued for alias process for the others, who, on being served, appear and plead to the ac- tion, and the court, on their motion, discontinue the suit as to them in consequence of the previous judg- ment, it will be error ; the judgment by default should not have been en- tered final until the ultimate dispo- sition of the case as to all the de- fendants ; but the other defendants were not entitled to a discontinu- ance in consequence of such erro- JUDGMENT. 801 neous entry. Prewett v. Garuthers, 7 How. 304. 79. If the officer lev^ on suffi- cient property and waste it, it will be a satisfaction of the judgment. Ker- shaw V. The Merchants Bank of New York, 7 How. 386. 80. A levy on personal property creates a presumption of satisfac- tion, but that presumption may be rebutted by other proof. 3. Bibb V. Jones, 7 How. 397 ; Fiekens v. Marlow, 2 S. & M. 428 ; Walker V. M'Dowell, 4 S. & M. 118 ; the execution of a claimant's bond to try the right of property will be a legal amotion of the levy. lb. ; and a voluntary restitution of 'the pro- perty to the defendant, by the she- riff, would remove the ■prima facie satisfaction and revive the lien of the judgment. Walker v. MWow- ell, 4 S. & M. 118. 81. Where a sheriff returns on an execution, that he had levied it on six slaves to pay the sheriffs fees, it was lield not to be a prima facie satisfaction of the judgment. 7 How. 397. 82. Under the statute of this state, giving the judges of the circuit court the same authority in vacation as in term, time, to correct and amend judgments of the circuit court, hy the papers in the cause, a circuit judge will have power in vacati&n on due notice to the adverse party, to correct a judgment two years and six months after its rendition, which was rendered by nil dicit in an action of debt on a bond, for the damages only, and not for the prin- cipal debt by having it enteted for the pringipal debt and damages. Graves v. Fulton, 7 How. 592. 83. Where a correction is made in a judgment in vacation under the statute, it cannot afterwards in term time be set aside and vacated 26 on motion without notice to the ad- verse party, lb. ; not even to in- sert the amount of the judgment where it was entered by default and the clerk omitted to specify the sum. Foole v. M'Leod, 1 S. &M. 391 ; and no original judgment can be amehded after forthcoming bond given and forfeited. Burns v. Stan- ton, 2 S. & M. 457 ; judgments can only be amended in t^ie mode point- ed out by the statute. Russell v. M'Dougall, 3 S. & M.' 234. 84. After judgment at law a court of chancery has no jurisdic- tion to revise the subject-raalter of the suit at. law. Houston v. Roys- ton, 1 S. & M. 238. 85. An -appeal or writ of error lies, at law, only from final judg- ment. Porter v. Deterly, 1 S. & M. 163. 86. A judgment . of the circuit court will not be reversed because the clerk below certifies that the note sued on is different from that described in the declaration. Bar- fieU V. Impson, 1 S. & M. 326. 87. Where a plea in abatement is filed and demurred to, it is error to render judgment final against the defendant as on default, without disposing of the demurrer. Rowley V. Cummings, 1 S. & M. 340. 88. A judgment without notice is void arid may be inquired into directly or collaterally ; and it must appear of record that notice was given, either actual or constructive. Gwin V. M' Carroll, 1 S. & M. 351 ; Prentiss v. Mellen, lb. 521. 89. See Appeal, 19 ; judgment must be rendered against all the parties in an appeal bond given for a jury trial in the justices' court. 90. A judgment cannot be given on a verdict which varies substan- tially from the issue. M''Coy v. Rives, 1 S. & M. 592. 302 JUDGMENT. 9-1. A judgment may be attach- ed or garnisheed. . Gray v. Ulenby, 1 S. & M. 598. 93. See Partners, 17 ; when judgment in favor of a surviving partner is revived by administrator of deceased partner, v 93. See Assignor and Assignee, 5 ; by Vifhom. suit must be brought on an assigned judgment which be- longed to a bankrupt. 94. A levy of an execution upon real estate and the postponement of the sale thereof for a period of twelve months, by the defendant therein taking the benefit of the valuation law, will not remove or destroy the lien of such judgment ; and if th« land levied on, when sold, do not pay the amount of the judgment, the execution on the judgment may be levied on other land of the defendant sold under a junior judgment pending fhe stay occasioned by the valuation law, and the purchaser under the last sale, being on the oldest judgment, will hold the property. Pickens v. MarZoa;, 2 S. & M. 428. 95. Under the act of February 6, 1841, prohibiting the liens of judgments out of the county of their rendition, until an abstract of the judgment be filed in the other coun^ ties, where executions issue to a county different from that where the judgments were rendered and no abstract of either is recorded in such county, the execution which comes first to the hands of the she- riff and is first levied, though on the junior judgment, will take the priority. Gresham v. Tloberts, 2 S. & M. 471. 96. Where a year and day have elapsed after the rendition of a judgment upon a forfeited forth- coming bond, without the issuance of an execution, the judgment must be revived by scire facias. Abbott V. Hackman, 2 S. & M. 510, 97. The affirniiance of a void judgment from techiiical causes, as an imperfect record, does not ren- der it valid. Pender v. FeUs,2 S. & M. 535. 98. The judgment against an administrator must not be de bonis propriis ; but in his representative capacity. Hill v. Roheson, 2 S. & M. 541 ; Neely v. Planters Bank, 4 S. & M. 113. 99. See Pleading, 85 ; where judgment is general and some of the counts are bad. 100. See Scire Facias, 10 ; after judgment on scire facias, defects iu the original judgment cannot be noticed. 101. See Scire Facias, 11 ; dis- continuance as to one party to a judgment discontinues it as to all. 102. Where the high court of errors and appeals have rendered a judgment, either of affirmance of the judgment of the circuit court, or have rendered such judgment as the circuit court should have ren- dered, it. is the duty of the clerk of the circuit court to issue an execu- tion upon that judgment, on a cer- ficate of the clerk of the supreme court of the rendition thereof. Morton v. Simmons, 2 S. & M. 601. 103. Where a judgment is ren- dered in the court below on a forth- coming bond, and all the defend- ants but one prosecute a writ of error, and the high court affirms the judgment, and execution is awarded on that affirmed judgment against the parties to the writ of error and the sureties in the writ* of error bond, it is not erroneous, that the party who did not join in the writ of error is no party to such judg- ment and execution ; he will be li- JUDGMENT. 303 able to an executiqli on the original forthcoming bond. lb. 104. See Parties, 15; the inser- tion in the prefix to the record of the judgment, of a name not a par- ty to the suit, will not vitiate the judgment. 105. Judgments are a lien on the interest the defendant in execution actually has, and purchasers under judgments acquire only such right where they have notice of its na- ture. Simmons v. North, 3 S. & M. 67. 106. See Recognizance, 4 ; . a change of time of holding coiy;t will not affect judgment on process re- turnable to the old time of court. 107. It is error to render judg- ment by default where the parties have agreed to consider a plea filed and issue, joined; McEwin v. The State, 3 S. & M. 120. 108. On the affirmance by the high court of errors and appeals of a judgment of an inferior court, the lien of that judgment in the inferior court is not extinguished, satisfied, merged, or in any way affected there- by ; nor does the judgment, rendered by the high court upon the appeal or writ of error bond against the prin- cipal and his sureties, extinguish or affect the lien of the original judg- ment ; that lien continues in full force, and after such affirmed judg- ment dates back to the date of the first judgment below. Planters Bank\. Calvit,3S. &i,M. 143 ; idem, Montgomery v. McGimpsey, 7 S. & M. 557 ; the rule will be the same though a capias ad satisfaciendum had, previously to the writ of error, been sued out on the judgment. Kilpatrick v. Bye, 4 S. & M. 289. A purchaser under an execution, is- sued by the clerk of the circuit court against the principal and sure- ties on the writ of error bond, upon the certificate of the high, court of errors and appeals, of an affirm- ance by that court of a judgment of the circuit court, of land mortgaged by the judgment debtor between the time of the rendition of the ,i judgment of the circuit court and f its affirmance by the high court of errors and appeals, acquires, a su- perior title, and will be preferred to the mortgagee. Montgomery \. McGimpsey, 7 S. & M. 557 ; and where such judgment was affirmed with damages, and the land was sold for enough to pay the damages as well as the judgment and costs, it was held, that the purchaser ac- quired a title unincumbered by the mortgage, aiid the most that the mortgagee could claim would be the amount of the damages as a sum not covered by the elder judg- ment, and that must be claimed of the judgment creditor, and not of the purchaser, lb. 109. In an action of debt on a bond, with conditions, when the "de- claration alleges special breaches, the judgment by default must not be final, but with a writ of inquiry, and a jury must be empanelled to ascertain' the damages. Russell v. McBdugall, 3 S. & M. 234. 110. Judgments obtained by fraud may be set aside upon pTo- per proceedings for that purpose. Ross V. Lane, 3 S. & M. 695. 111. if the officers of court have judgment against a bank, and the bank have a judgment against them, the court will order a judgment in favor of the officers, to be credited on the judgment in favor of the bank, if the latter exceed the for- mer; Officers, of Court v. Bank of Port Gibson, 4 S. & M. 431. 112. A person claiming to be the assignee of a judgment in fa- vor of A. against B., cannot object 304 JUDGMENT. to a set-off of that judgment against a judgment B. has against A. in the same court, without producing evidence to the court, of the assign- ment of A.'s judgment to him ; whether he could object to the set- off at all in a court of laW ? Qucere. lb. 113. A levy by attachment on land will prevail over a junior judg- ment, even though the judgment in the attachment be younger than the other judgment. Redusy. Wofford, 4 S. & M. 579. 1 14. It is a good plea to .an ac- tion of debt, founded upon a judg- ment rendered in another state, that the defendant had no notice of the proceedings in the suit in that state in which the judgment, was rendered ; and if the plaintiff design to rely on the appearance, of the defendant as an answer to the want of notice, he should reply to that effect. Wright v. Weisinger, 5 S. 2. The re- cital in the record " This day came the parties," &c., will uphold a judg- ment in Alabama, and an action on such judgment may be maintained in this state. lb. 1 17. A plea of nul tiel record does not conclude with a verifica- tion, but ohe will not vitiate. lb. 1 18. Where a controversy as to priority of judgment lien arose be- tween P. B. and-M., both judgment creditors of N., and the court de- cided in favor of M., the junior fcreditor in point of time, on the ground that P. B. had, by his ac- tion, postponed his priority as to M.; held, that this decision could not affect creditors who were not par- ties t^it, and did not impair or in- validate the lien of P. B., except as it came in conflict with that of M. Pickett V. Planters Bank, 5 S. & M. 470. 119. Judgments rendered with a stay of execution, retain under (he law of 1824 their Hen from the date of rendition, and a sale under judgment rendered, pending the stay of execution, will not defeat the lien of the fijst judgment, lb. 120. See Chancery, 167 ; after return of nulla bond, a judgment creditor may subject the- note se- cured by deed of ti;ust held by his judgment debtor, to the payment of his judgment in equity, and have the property sold to pay it. 121 . Where there are several de- fendants, on all of whom process is served, and an appearance and plea as to one only, a judgment against that one, without taking any notice of the others, is erroneous. Henry v. Halsey, 5 S. a judgment is a lien only on the actual interest of the defend- ant, and therefore does not bind real estate, the purchase-money of which is not paid, so as to cut out the lien therefor. 123. In all cases where judg- JUDGMENT. 305 rnents or decrees are admissible as evidence, as a medium of proving the facts on which they are based, the parties must be the same or in privity; and the better rule seems to be, tha;t when a decree of a court of chancery is relied oh, the pro- ceedings on which the decree was predicated should accompany it ; therefore in an action for breach of an injunction bond, the record of the mere -decree dissolving the in- junction, which does not specify all the parties, and contains none of the previous proceedings, is inad- missible. Goddard v. Long, 5 S. & M. 782. 124. See Pleading, 125 ; when the demurrer to a replication is overruled, the court cannot render judgment final for the plaintiff, where the amount is not ascertain- ed without calculation, but must award a judgment with a writ of inquiry. 125. Upon a demur-rer to a plea puis darrein continuance being sustained, the judgment of the court under the statute H. & H. 615, § 8, should be respondeat ouster. McDugald V. Mississippi Union Bank, 6 S. &.M. 333. 126. A judgment, may be assign- ed by the judgment creditor to a third party ; by , such assignment the beneficial interest in the judg- ment will pass to the assignee, who will have, the right to use the name of the judgment creditor to enforce the execution. Vanhouten v. Reily, 6 S. & M. 440. 127. See Executor and Admin- istrator, 108 ; for right of judgment creditor, though distributee of an estate, to enforce execution against the estate after distribution. 128. See Executor, 109 ; a judg- ment against an executor, after he' ■ has resigned his ofiice, is a nullity. 26* . 129. See Vendor and Vendee, 31 ; for the extent of the lien of a judgment on the property of a ven- dor, who has given a bond for title only, and how it can be en- ^ forced. 130. Adjudgment without notice, and without the appearance of the 1 party against whom it is rendered, is a nullity,, and may be shown to be so even when it comes collater- ally in question. Enos v. Smith, 7 S. & M. 85. 131. A judgment by default final is erroneous where the action is in debt on two bills single, a promis- sory note, and an open account ; it should have been with a writ of inquiry. Sandfordy. Campbell, 7 S. & M. 107. • 132. In a suit against two de- fendants, one of whom makes de- fault, and the other pleads, it is error to take judgment at one term aga,inst one for a certain sum by default ; and.q, verdict and "judgment on the issue against the other, at a difier- ent term for a difierent sum. Fal- coner V. Frazier,! S. & M. 235. 133. Where a plea has been filed, and a demurrer to it sustained, and under the judgment respoMtZeaif ous- ter, another plea filed, the demur- rer to which is overruled by the court below, but sustained on appeal to the high court of errors and ap- peals, the judgment of that court will be quod recuperet. Atkinson '- V. Fortinherry, 7 S. & M. 302. 134. Where a demurrer to a plea is overruled, it is error«fo'*en- der judgment final ; it should be, respondeat ouster. Lang v. Fa- theree, 7 S. & M. 404; so also, where a demurrer to a plea is sus- tained. Heyfron v. Miss. Union 5a«i, 7 S. & M. 434. 135. Where the circuit court set aside an entry of satisfaction and 306 JUDGMENT. awarded an execution, held, that the judgment of the tjourt in so do- ing could not be collaterally ques^ tioned ; it was correct and conclu- sive until reversed. Brooks v. Whit- son, 7 S. & M. 513. 136. A court of equity will limit the lien of a judgment to the inter- est which the judgment debtor ac- tually had in the property at the .time the judgment was rendered ; so far,' at least, as to protect the prior equities of third persons. Jen- kins V. BocUey, 1 S. & M. Ch. 338. 137. Where the plaintiff, in a judgment rendered in a sister state, comes here to enforce it, it is en- tirely competent for the defendant to show that the judgment was ob- tained by fraud, which vitiates, judi- cial acts and renders them utterly void. Fieigher v. Happ, 1 S. & M. Ch. 374. 138. A judgment in this state of older da;te than the registration of a mortgage, though junior to its execution, will be a prior lien upon the land embraced in the mortgage. Bingaman v. Hyatt, 1 S. & M. Ch. 437. 139. The interest of a grantor, in a deed of trust, is not subject to seizure and sale under execution at law ; nor is (he interest of a cestui que trust, unless there is a mere legal title in the trustee; a judgment at law is not a lien upon a mere equitable interest at law. Mclntyre v. Agricultural Bank, Freem. Ch. 105. 140. A levy under execution is prima jTacie satisfaction of the judg- ment, subject to be rebutted ; where, therefore, judgment is recorded in separate suits against a- maker and an indorser of a note, and execu- tion on the former is levied, arid forthcoming bond forfeited, on which the sheriff returns that he has received a certain sum in de- preciated money ; held, that it was no satisfaction of the latter judg- ment.. McNutt v. Wilcox, Freem. Ch. 116. 141. It seems that the delay or failure of a plaintiff in a judgment at law, to enforce his judgment for nearly four years, is to be regarded as fraudulent as to bona fide pur- chasers from the judgment debtor. Speight V. Adams, Freem. Ch. 318. JUDGMENT NON OBSTANTE VEREDICTO, . A judgment non obstante vere- dicto cannot be rendered after a judgment upon the verdict has been entered ; the rule on that subject is, that the motion' for such judgment must be- ma-de immediately after the verdict, and before a judgment is rendered ion it. The State v. The Commercial Bank of Manches- ter, 6 S. & M. 218. JURISDICTION. 1. Courts have no jurisdiction over the dead, unless represented as required by law. Gerault v. Anderson, Walk. 30. 2. Where the constitution of the state does not define the jurisdiction; of the supreme court, but leaves it to the legislature to do it, a statute authorizing an inferior court, when it doubts as to the law, to transfer the case, before final judgm^t, is constitutional. Blanchard v. Buck- holt, Walk. 64. 3. Where an inferior court makes such transfer, the order wiU be 'va- lid, though it contain no reasons for the transfer. lb. JURISDICTION. -JURY. 307 " 4. See Roads, 4, 5, as to juris- diction of county courts in laying oiit roads, and how far the power delegated must be strictly pursued.. Stockett V. Nicholson, Walk. 75. 5. The" defects in the proceed- ings of county courts cannot be es- tablished by parol ; the proceedings must be recorded, and proved by the record. lb. 6. See Wenue, 1, as to. jurisdic- tion, where freeholder is -sued out of his county. Spain v. Winter, Walk. 152. 7. See Justice of Peace, 4, as to division of account, to give jurisdic- tion. 8. The supreme court has no ju- risdiction of an appeal from the in- terlocutory decree of the chancel- lor, unless the circumstances re- quired by the statute exist. Revised, Code, 93, § 37 ; Linn v. Kyle, Walk. 315. 9. See Interest, 5, fqr jurisdic- tion of circuit court of note for fifty dollars exactly. 10. To give the high court of er- rors and appeals jurisdiction of a case sent up to it on doubts' from the circuit court, (if the high court have jurisdiction at all, of which, queer e ?) the whole recor4 mugt be sent up, and the point on which, the, circuit judge doubted, affirmatively ' appear. Caraway v. The Board of Police of Yazoo Co. 1 How. 21; 11. The high court will always inquire whether it has jurisdiclion of a case, even though the parties do not raise the point. Stamps v. Newton, 3 How. 34 ; to give juris- diction, a judgment must be shown. Rogers v. McDaniel, 3 How. 172. 12. See Venm, 4, for jurisdic- tion on change of. 13. See Justice of Peace, 9, for jurisdiction over corporations. 14. See Circuit Court, 6, for jurisdiction where all the parties defendant live out of the county. 14. Consent cannot give jurisdic- tion where it is withheld by the con- stitution. Hurd V. Tomles, 7 How. 229 ; or is not authorized by law. Bell V. Tomlighee Railroad Co. 4 S.-& M. 549. 15. A court having once acquir- ed jurisdiction, does not lose it by any change of circumstances. Read V. Renmd, 6 S. & M. 79.. 16. The fact that both parties to a suit in cha"ncejy in the state courts claim the land in controversy, under a treaty to which the United States is a party, 'has in itself nothing to exclude the, jurisdiction of the state court. Lan'd^Y. Land,, 1 S. & M. Ch. 158. See Chancery,, tit. Jurisdiction ; Probate Court ) Circuit Court ; Ju-tice of Peace, and High Court of Errors and Appeals. JURY. 1. See New Trial, 6, 7, 8, 9. It is error for jury to take out pa- pers\not read on trial, to disperse without permission of court, or to examine witness except in open coui't Oft V. Vick, Walk. 99. 2. See Criminal Law, tit. Jury; as to what opinion disqualifies juror. 3. See Instruction, 1 ; as to charge to jury. , 4. The verdict of a jury, with- out showing that they were sworn, and that an issueyivas submitted to them, is erroneous, and the judg- ment will be reversed,; and the phrase, the jury say \'\on their oaths," &c, will not be\sjif5cient to show that they were sworn. Beall V. Campbell, 1 How, 24; Wolfe V. Martin, 1 How. 30; Ir- 308 JURY. win V. Jones, lb. 497; sed vide Sumpter v. Geron, 4 How. 263. 5. A verdict by a jury of thir- teen persons is erroneous, lb. ; aed aliter, it is not erroneous. Tillman V. Ailles, 5 S. & M. 373. 6. A juror, in a capital case, must be either sifreeJwlder or house- holder, and to be neither is a. ground of challenge. Byrd .v. State, 1 How. 163. 7. The qualifications of the spe- cial venire are the same as those of the general venire; no length of time of citizenship is requisite to qualify a jurdr. lb. 8. Though the legislature can- not alter or abolish the number of the jury, yet they can constitution- ally prescribe the qualifications of those who shall compose it. lb. 9. Under the statutes of this state regulating the panel of jurors, and who shall constitute the regular venire, and conferring jurisdiction on the circuit courts as courts of oyer and terminer, and general jail deliv- ery, they have power, in a criminal case, to issue a venire, in term time, tested of that term, for thirty- six jurors, returnable at the same term in six days. Shaffer v. The State, 1 How. 238 ; Wuodsides v. State, 2 How. 655. 10. Where the venire required the sheriff to summon thirty-six good and lawful men, &c., as near as may be to the place of murder, it was held to be erroneous. R. 11. Where it appears, in an in- dictment, that the grand jury were of the proper county, it frill not be error that the indictment terms them, " grand jurors of the state of Mississippi." lb. , 12. The sheriff's return of " served a true copy of indictment, venire facias, and venire, on the prisoner," sufficient evidence of service of list of jury on the pris- oner, lb. 13. Defect in summoning the venire, and serving the copy of it on prisoner, is cured by the pris- oner's going into trial, lb. 14. How far regular venire of grand jurors can be objected to after verdict, where it is not part of the record by bill of exceptions. See Circidt Court, 2 and 3. ' 15. It is no ground of challenge to the venire, that " at the time the persons summoned on the origiaal venire, to serve as jurors at the then term were drawn, there was not among the records or papers of said court', or in the books thereof, any list of persons so taken and re- turned by the assessor, as afore- said, or any copy of such list ;' " the law requires the list of jurors to Ke deposited in a box, to be drawn at court ; and it is not to be kept among the records or papers of the court. Stevens v. Richer, 1 How. 522. 16. 'It is no ground of challenge to the array, that one of the jurors placed upon the panel is disqtiali- fied ; such challenge relates to the act of the sheriff in arraying the panel, and not the character of the jurors. Woodsides v. The State, 2 How. 655. 17. A jury of eleven men vitiates the verdict; Dixon v. Richards, 2 How. 771 ; Carpenter v. The State, ' 4 How. 163; Bone y. McGinley, 7 How. 671. 18. See Criminal Law, tit. Jury, for appointment of foreman of grand jury. 19. The record must show that the grand jurors were sworn, and the statement in the indictment to that effect will not be sufficient. Cody V. State, 3 How. 27. 20. It is groXind for a new trial JURY. 309 if one of the jurors, before the trial, declare, that should he te of the jury he could not clear the ac- cused, but would be bound t9 find him guilty. lb. 21. See Criminal Law, tit. Jury ; person not sworn going into jury- room, ground for new trial. 22. The statutes of this state, limiting the right to challenge the array, are not unconstitutional, as infringing the right of trial by jury. Hare v. State, 4 How. 187. 23. See Criminal Law, tit. Jury, for qunlification of juror who has impressions unfavorable to pris- oner, biat formed and expressed no opinion. 24. Where a juror stated that he was surety for one of the parties to the suit, on a debt' not involved in the suit, and that a judgment against such parly, who was already insolvent, would affect that party's ability to pay the debt he was surety for, and that he felt himself unfit to sit on, the case before the court ; held, that- the juror was incompe- tent, and should have been ex- cused'; if, however, he be sworn for the trial, and be peremptorily challenged afterwards, and do not sit in the case, it will not be error to the prejudice of either party, as he did not participate in the ver- dict. Ferriday v. Selcer, 4 How. 506. 25. See Sheriff, 28 ; on motion against sheriff and his sureties, they are not entitled to trial by jury, and if they were, that right can be waived. 26. Aifidavits of jurors inadmis- sible to impeach their verdict. Friar v. State, 3 How, 422. 27. It is for the jurj-, and not the court, to draw presumptions from the facts proved. . Dickson v. Moody, 2 S. & M. 17.- 28. On motion to enter satisfac- tion of a judgment; it is not neces- sary for a jury to be empanelled. Planters Bank v. Spencer, 3 S: 4^ M. 305. 29. It will be no objection to the verdict and judgment, that the re- cord does not give the names of the individuals composing the jury ; and if the record recite, that '.' a ^ jury" passed upon the case, it will be construed to mean twelve men duly qualified, unless the' record itself show the contrary. Redus v. Wofford, 4 S. & M. 579. ' 30. 'Where a grand jury were empanelled, of whicli twelve per- sons were taken from the regular venire, a,nd that being then exhaust- ed, two other persons were taken from by-standers summoned by the sheriff; held, that the grand jury were properly organized. Dowling v. The State, 5 S. & M. 664; Johnston v. The State, 7 S. .& M. 58. ■_ _ • 31. 'Whether objections to the personal qualifications of grand ju- rors, or to the legality of the re^ turns, can affect any indictments found by them, after such indict- ments have been received and filed by the court, quaere 1 lb. 32. 'Where by-standers have been summoned by the sheriff, to com- plete the panel of the grand jury, in the absence of a sufficient num- ber of the regular venire, and the record does not afiirm that such by-standers had the requisite quali- fications, the law will presume, un- til the contrary be made to appear, that they had the proper qualifica- tions, lb. 33. The statute which limits the number of peremptory challenges, in capital cases, on the part of the prisoner, to twelve, is not an in- fringement of the clause in the 310 JURY.— JUSTICE OF THE PEACE. constitution which provides "that the right of trial by jury shall re- main inviolate ; " the trial by jury is twelve free and lawful men, who are not of kin to either party, for the purpose of establishing, by their verdict, the ■ truth of the matter which is in issue between the par- ties ; any legislation, therefore, which merely points out the mode of arriving at this object, but does not ' rob it ' of any of its essential ingredients, cannot be considered an infringement of the right. lb. 34. Where a jury, in the trial of an action for assault and battery, after having retired to make up their verdict, agreed, immediately upon entering into the jury-room, that each should put down a. sum which should be divided by twelve, and that the result should give the amount of damages to be found by their verdict ; and this agl-eement was carried out and acted on ; held, that the verdict, so foUnd, was ir- regular, and should be set aside. Parham v. Harney, 6 S. & M. 55. 35. Whether the affidavits of jurors to establish the conduct of the jury while in the jury -room are admissible, on a motion for a new trial, qucere ? lb. 36. Although persons not of the jury intrude upon them in their re- tirement, and one of the jury during their retirement separates himself from his fellows, for a period, yet these facts, though irregularities and reprehensible, will not be grounds for reversing' the judg- ment, when it does not appear, by the record, that any influence *as attempted on the jury, or the ab- sentee, to procure the verdict ren- dered by them. Graves v. Monel, 7 S. &' M. 45. JUSTICE OF THE PEACE. 1. Where the statute requirea that appeals from justices of the peace shall be tried in the circuit court de novo, on issue to be made up at, or before the trial, it will be error to try such an appeal in the circuit court, without such an issue. Lindsay v. Herd, Walk. 18 ;' Horn V. Gillock, lb. 107. ■2. See Forcible Entry and Be- taijier, -5. The justice cannot re- ject jurymen without cause. Lewis V. Sulcer, Walk. 21. 3. For certiorari from justice of the peace, when it lies, see Certio- rari, 2, 3. Duggin v. McGruder, Walk. 112. , 4. A party cannot divide an ac- count, composed of various items, so as to give jurisdiction to a magis- trate. Grayson v. Williams, Walk. 298. 5. . Where the statute permits the affidavit for a distress warrant to be made before a justice of the peace of the county, a justice of the peace for the city cannot take it. Vannerson v. Staunton, Walk. 358. 6. See Attachment, 5, as to pow- er to deliver attached property to plaintiff. 7. A justice of the peace has jurisdiction to allow an offset of a greater sum than his court has ju- risdiction of; and where the ex- cess does not exceed the jurisdiction of the justice, he may render judg- ment for it. . Glass v. Moss, 1 How. 519. 8. Justices of the peace, under the act of 1836, are notaries public, ex officio. Wilcox y. Mitchell, 4 How. 272. 9. Under the constitution of this state, giving justices of the peace jurisdiction of sums not exceeding LAND LAWS OF THE UNITED %TATES. 311 fifty dollars, they have jurisdiction of suits against corporations for sums within their limit ; and they can issue process against them un-. der the statute of 1839, which pro- vides that all writs and process^ either at law or in equity, may he tested and returnable against cor- porations as against natural per- sons ; that statute embraces justices of the peace who can proceed by summons against corporations, as in other cases. Lpomis v. Commer- cial Bank of Columbus, -4 How. 660. 10. A justice of the peace has jurisdiction of a suit on a note for Jifii/ dollars, payable twelve months after date, and bearing interest from date, at the rate of six per cent, per annum, and may render judgment for principal and interest, though they jointly exceed fifty dollars ; the constitution and laws, giving justices jurisdiction where the ^riw- cipal of the sum in controversy does not exceed fifty dollars. Planters Bank v. Coulson, 6 How. 395. 11. See Circuit Court, 10, for jurisdiction of appeals and certio- rari, from justice's court. 12. See Appeal, 19 ; judgment shall be rendered on appeal bond for jury, trial in justice's codrt, against all the parties, on certio- rari. 13. Proceedings in causes, be- fore brought from justice's court, are de novo, and without any plead- ings whatevef, in circuit court. Wright V. Simmons, 1 S.. & M. 389. 14. See Evidence, 137 ; justice of peace witness as to what a per- son testified to before him, when written statement lost, and effect of that written statement. L. LAND LAWS OF THE UNI- TED STATES. 1. The- act of congress of 1803, donating lands to certain persons, itself, with the proceedings of the board of commissioners, confers title. See raZe, 1,2. Hackler v. Cahel, Walk. 91. 2. See Spanish Laios and Claims, 4-8, as to conflicting titles to land, and confirmations by the United States, and the effect of patents. Winnv. Cole, WaXk. 119. 3. The officers of government should give the patent to him who is by law entitled to it ; and if they give it to another, he is a trustee for the true owner ; if a govern- ment,- by mere act of power, make a grant, and give title to a second person, after having granted pre- viously to a first, the court will respect the title of the first grantee. Stark V. Mather, Walk. 181. 4. The confirmation by congress of a Spanish title shall relate back to the origin of the title. lb. 312 LAND tAWS OF THE UNITED STATES. 5. Where A. received "a grant o£ landg from the Spanish govern- ment, which was revoked by them by an arbitrary act of power, and the land regranted to B., and A. driven from the country, and B.'s title confirmed by the board of com- missioners of the United States, B. shall be decreed to hold as trustee for A. Stark v. Mather, \Va.\k. 181. 6. The decisions of the board of commissioners, under the acts of 1 803, respecting the public lands, are final, as regards the United States. Ross v. Barland, Walk. 489. See Chancery. 7. See Real Estate, passim, for laws with reference to lands, and decisions on acts of congress. 8. By act of congress, passed in 1832, Jefferson College, in consid-> oration of certain relinquishments, was authorized to enter a certain amount of land, not more than two sections in one body ; the register to issue a certificate of entry, upon which a patent was to issue ; it was further provided that the college might, under its corporate seal, transfer the right of location, in whole or in part, and authorized the assignee, on lodging with the register the deed of assignment, to receive a certificate of entry, which the act provided should be held as valid and complete as if a patent had issued ; that the assignee of the college by such certificate ac- quired a complete title, as fully as if by patent, and' that the possession of the certificate by such assignee, would be evidence that the deed, of assignment, under seal of the col- lege, had been made. Fulton v. M'Afee, 5 How, 751. 9. Where a- certificate called for two sections of land, fhe'holider of it will not be limited to twelve hun- dred and eighty acres ; if ihesec- tions contain more he will be en- titled to all the land embraced within their boundaries, as estab- lished by survey, lb. ■' 10. In a controversy between the holder of such certificate of entry and' a junior patentee to the same land, who claims by virtue of a pre- scription, under the law of 1834, the junior patentee, in order to cut- out the certificate, which was of elder date, must show affirmatively, that all the requisites to entitle him to the preemption were complied with, and as the preemption law required that the party must have been in the preceding year both in possession and in cultivation of the land, proof of mere possession m\\ not be sufficient, ner will proof of a settlement and improvement on the land be evidence of cultivation; and as the act requires that this proof shall be made before the register and receiver of the land- office, proof that it was made be- fore the register alone, will not be sufficient, lb. 11. ^A"nd where the holder of such junior patent sought to charge the holder of such certificate" with fraud in its procurement, because the junior patentee was present be- fore the register, at the time the certificate was granted^ claiming his preemption in the premises, with witnesses to prove his settle- ments and improvements on the premises, it was held, that the testi- mony should properly be rejected, as not tending to provfe fraud, be- cause the .register was right to re- ject the claim of preemption, it not being proved in the mode required, nor before the proper officers. lb. 12. The Spanish government never had a right of soil above the thirty-first degree of north latitude ; its grants, therefore, to land above LANDLORD AND TENANT. 313 that limit passed no title ; up to the year 1802 the title -fras in the state of Georgia, and previous grants from Spain were of no avail ; on the 24th of April, 1802, Georgia ceded the land constituting the Mississippi Territory, to the United States, and, by the terms of ces- sion, all those who, on the 27th day of October, A. D. 1795, were actual settlers in the territory, un- der Spanish grants, should be con- firmed in their title ; it was also provided, under certain stipulations, that five million acres of the terri- tory should be set apart, not inter- fering with other grants, to quiet, or compensate for other claims than those theretofore recognized ; and in March, 1803, in legislating with reference to such claims, congress passed a law, that those who were resident in the territory, on the 27th day of October, 1795, in possession of land under Spanish warrants, actually inhabiting and cultivating it for their own use, &c., should be confirmed in their warrants, as fully as if their' titles had been complete ; held, that the person claiming un- der a Spanish grant, confirmed by the treaty of cession to the United States, would have a title para- mount to one claiming under a Spanish warrant, confirmed by con- gress a year afterwards, even though the date of the Spanish warrant be older than that of the grant. Nevitt v. Beaumont, 6 How. 237.- 13. Ill such case the confirma- tion in the cession completed the title, and the confirmation of com- missioners added no validity to it. lb. LANDLORD AND TENANT. 1. Under the statute of this state, 27 allowing double damages to the landlord, where the tenant replevies the goods distrained for rent, found to be justly due, and in arrear, the landlord is not entitled to double damages, where he obtains a ver- dict for only part of the sum claim- ed by him as due for rent. Ter- rel V. Ligon, Walk. 170. 2. The goods .of a tenant cannot be distrained by iJie landlord for rent, unless they have been on the demised premises. Bradley v. Pig'- g-oi, Walfc. 348. 3. See Justice of Peace, 5, £is to power of city justice to administer afiidavit to distress warrant. Van- nerson v. Staunton, Walk. 358. 4. The motion on a replevy bond for rent should be for execution, not judgment ; as .the bond, after forfeitsure, operates as a judgment. lb. 5. See Replevin, 2, as to liability of claimant of property distrained for rent to double damages, where he does not get the replevied pro- perty. 6. An attachment for rent, with- out bond and surety by the land- lord, is erroneous. Qornell v. Ru' Ion, 3 How. 54. 7. See Replevin, 4, as to whom replevin bond for rent is to be made payable. 8. Where property distrained has been replevied, the plaintiff in re- plevin need not, under the statute, file a declaration ; but the/jeplevin is tried on an issue m^e up at court, on the writ- of replevin. Parkhurst- v. Ditnlap, 6 How. 577. 9. The statute, authorizing exe- cutions to issue on bonds, to pay the money in three months, taken on distress for rent, by motion to the court, does not violate the con- stitution. Peck V. Critchlow, 7 How. 243, ^ 314 LEASEHOLD INTEREST. — LEGACY. 10. Where the obligors, in a three months' replevin bond fpr rent, are notified that a motion will be made against them for judgment on the first day of the term, and it is^not made or entered on that day, it will be erroneous tb-take it upon •a subsequent dtiy, unless the obli- gor appear voluntarily. Phillips V. Chaney, 7 How. 250. 11. See Executor and Adminis- trator, 223 ; on a void sq;le of re- alty by executor, the purchaser who has made valuable improve- ments, will be allowed them against the rents. LEASEHOLD INTEREST. ' A lease for ninety-nine years, is a mere chattel, like a lease for any shprter or longer time, and goes to the administrator to be adrainisrered. Dillingham v. Jenkins, 7 S. & M.' 479. LEGACIES. 1. See Interest, 2, for interest on legacies charged on personal /pro- perty. Brownlee v. ^eel, Wetlk. 179. 2. See Executor and Adminis- trator, 14, as to executor's right to recover hire of slave in possession of legated after, testator's death. 3. An executor in Kentucky may authorize legatee in this state to sue Hamilton v. Cooper, Walk. 542. 4. See Will, 11, as to right of residuary legatee to sue for legacy as a specific legacy. 5. See Will, 13; and Husband and Wife, 22 ; for vested legacy and reduction to possession by hus- band. 6. 1|he residuary legatee will take whatever by lapse, invalid dis- position, or other casualty, falls into the residue after the date of the will ; therefore where a testator made a will, manumitting certain slaves illegally, held, that the resi- duary legatee would take them in . preference to the heir at law. Vick v. McDaniel, 3 How. 337. 7. Legacies, and distributive shares in an estate are choses in ac- tion ; and until there is a division or partition among joint legatees and distributees, it retains that char- acter. Wade v. Grimes, 7 How. 425.- 8. The statute of this state, en- acting that "any person having a legacy bequeathed in any last will and testament, may sue for and re- cover the same at common law," changes the common law rule, which requires a resort to a court of equity, and ajithorizes a specific legatee, to maintain a suit for it at law without the assent of the exec- utor. Worten- v. Howard, 2 S. & M. 527. 9. As a general rule, a 'siiit for the recovery of a legacy should be brought against the executor-in the jurisdiction having cognizance of the will ', yet when the fund out of which the legacy is payable is trac- ed to the possession of the heir of the testator in a difl!erent jurisdic- tion, the suit may be maintained there ; but where a legacy was given, payable out of a fund in Louisiana, and the testator had pro- perty in this state, which the lega- tee attempted to subject to the pay- ment of his legacy, held, that the property in this state could not be resorted to, until the fund in Louis- iana was shown to be insufiicient. Montgomery v. Millikin, 5 S. & M. 151. 10. See Will, 53; where lega- LEGISLATURE. — LIBEL. — LIFE ESTATE. 315 tees may be compelled to an abate- ment of their legacies, or to a re- lease of a void devise. LEGISLATURE. See Executor and Administra- tor, 221-224. A private act of the legislature to sell real estate, is not unconstitutional ; but the terms of sale must be strictly complied with, or it will be void ; and such private act, if procured by fraud, will be void. LIBEL. 1. The oifice of an innuendo, in an indictment for a libel, is to con- nect the libel with extrinsic facts, to show the meaning and- bearing of words and phrases in it, and is ne- cessary, when the words published would not be libellous, Without such connection'. Slate v. Chace, Walk. 384. 2. The court will regard the use of fictitious names and disguises, in a libel, in the same sense that they are usually understood by the public. lb. 3. Everything written of another tp make him ridiculous, or hold him up to scorn, and calculated to produce a breach of the peace, is a libel. Torrance v. Hurst, Walk. 403. 4. See Limitations, Statute of, 9 ; for limitation of action for libel. her n'atural life, remainder over, and appointed her his executrix, with instructions to pay his debts as soon as possible, out of such funds as she should be able to appropriate to that purpose ; at the time of his death, the testator ■was largely in- debted, and the executrix paid the debts off, and filed her petition in the probate court to have a portion of the estate sold to repay her. Held, that the rents and profits be- longed to the tenant for life, and the remainder-man was bound to contribute, in proportion to his in- terest, towards removing the in- cumbrances, and that the money the executrix had advanced was a lien on the estate. Peck v. Glass, 6 How. 195. 3. In order to ascertain the pro- portion of debt the tenant for life, and the remainder-men are to pay, the circumstances, age, state of h<h of the tenant for life, are to be considered and a commis- sioher is to be appointed, to ascer- tain the facts, that the court may decree accordingly. lb. 4. See Will, 20. When re- maindet-men .may compel tenant for life to give security. LIFE ESTATE. . 1. See Merger,, 1. When lifd estate is merged iia greater estate. 2. A. devised all his real and personal estate to his wife, during LIMITATIONS, STATUTES OF. 1. T)ie statutes of limitation can- not be plgaded, in ^ar, here ; but,, where the gtatute of another state, not only bars the remedy, but takes away the right and -confers title, it may be pleaded with the averment of title acquired thereby. Hamilton V. Cooper, Walk. 542. 2. See Pleading, 23, 24, and 25 ; as to executors pleading stat- ute of limitations of eighteen months, for non-presentation of claim. 316 LIMITATIOJ^S, STATUTE OF. 3. See Pleading, 30 ; as to form of plea .of statute of limitations, where the debt was due after date. Slocumb V. Holmes, 1 How. 139. 4. The exception, in the statute, of accounts between merchant and merchant, does not apply to an ac- count for work and labor, though between merchant and merchant. lb. 5. Where the bar of the statute •of limitations has once run, and be- come a complete defence, no sub- sequent legislation can take away the defence, or revive the obliga- tion barred ; the right of defence, under the statute, having becortie vested in the party, it cannot be constitutionally taken away from him. The presumption of pay- ment, arising under the. statute of limitations, having once attached it cannot be taken away by a re- peal of the act ; such legislation would .be retrospective. Davis v. > Minor, 1 How. 183. 6. Where the legislature did not design to repeal- the whole act hf limitations, but only to shorten the period of lirnitation, such design should'be carried out, arid interpre- tation accordingly given to Ab law, even though in words it repeal the whole act. lb. 7. See Executor and Adminis- trator, 47 and 48. How far stat- ute of limitatiens may be plead by executors and administrators against distributees, in equity, and how far by trustees. 8. The statute of limitations will not apply to payments made, but will apply to set-offs. Barnes v. Lloyd, 1 How. 584. 9. The statute of limitations, which provides that every action upon the case, for words, shall be commenced 'and sued within one year next, after the words spoken, and not after, embraces words writ- ten, as well as words spoken. Menter v. Stewart, 2 How. 698. 10. A plea to an action on a judgment rendered in another state, that the cause of action did not ac- crue within six years, is bad. Williams v. Guignard, 2 How. 722. 11. The exception, in the statute of limitations, of accounts between mercliant and merchant, from its operation, does not apply to the sale of a single lot of goods, how- ever large, but only to cases where there were itiutual dealings and mutual credits. Davis v. Tiernan, 2 How. 786. 12. An account stated, even though between merchant and iher- chant, is within the operation of the statute of limitations ; and it is for the jury to say whether an account sued on, is an account stated or not. lb. 13. Where A. sued B., on an account for metehandise, and B. plead the statute of limitations, and A. replied, it was between mer- chant and merchant, and therefore not subject to it, and B. traversed it, -it will be competent for B. to show that the account sued on, was an account stated, and so, subject to the statute, lb. 14. Where a surety, on a sher- iff's bond, was sued, and the -surety plead the death of his principal, and that the claim sued for had not been presented to the administrator of the sheriff, within tinie to save the bar of the statute, for a failure to present claims ; held, to be no defence to surety. Kerr v. Bran- don, 2 How. 910. lb. ; with refer- ence to surety on note ; the surety may compel the holder to present it to the administrator to save the bar. Johnson v. The Planters LIMITATIONS, STATUTE OF. 317 Bank, 4 S. & M.' 165 ; Cohm v. Commissioners of Sinking Fund, 7 S. & M. 437. 15. Courts of equity adopt limi- tations of rights, which are pre- scribed in the analogous proceed- ings at law ; therefore, the remedy by a bill in chancery, to recoVer possession to real estate,' will be barred if the defendant has been in possession more than twenty years, since the claimant became of age. Her V. Routh, 3 How. 276. 16. One heir may disseize his co-heirs, and hold in adverse pos- session against them, as well as a stranger, even though he enter as heir, and the statute will begin to run from such disseizin ; ■ mere sole possession will not be evidence of such disseizin ; it must be accom- panied with a notorious claim of an exclusive right, the strongest evidence of which claim, will be a sale of the land by such dis- seizor, and taking to' himself the whole 'purchase-money ; force or violence are not necessary to con- stitute an ouster. lb. 17. Where one heir took posses- sion of the realty of his ancestor, and sold it, &nd his vendees used It as their own, and demonstrated in various ways their exclusive claim to it, and the other co-heir did not sue for his portio.n, until twenty ye^rs had elapsed, after he came of age ; held, that his right was barred. lb. 18. The statute of limitations does not run against the govern- ment ; if, therefore, a suit be brought for land, in less than twenty years after the government parted with its title, the bar of the statute will not apply. Bledsoe v. Little, 4 How. 13. j 19. Where the statute of limit- -' ations once begins to run, no inter- 27* vening disability stops it ; where, therefore,- a decree was had against an administrator, and he afterward died, the statute will continue to run from the date of the decree, not-- withstanding his death, and not- withstanding no one has been ap- pointed in his place. McCoy 'f. Nichols, 4 Uow: 31. -, , 20. Where there is a life estate in slaves, the ■ statute of limitations does not begin to run until after the death of the tenant for life, as ■against the remainder-meia, even in favor of ar'vendee of the life estate. Magruder v. Stewart, 4 How. 204; 21. The statute of limitations, as to sealed instruments, being six- - teen years, to a plea to an action of debt, on a bond, that the cause of action had not accrued within sixteen years, it will be a sufficient answer that' the defendant to- the suit was a resident of Virginia, and' absent from tKe state of Mississippi, until the year 1838, and was not until then, subject to the jurisdic*. tion of the courts of this state ; the statute of this stat^, which prohibits the . statute runnitig while the de- fendant is out of the state, applying equally to the case of a person who was never in the state. Estis v, Raidins, 5 How. 258. 22. See Gift, 1 ; for what pos- session will cause the statute to run, to give title to -slaves to possessor, which are alleged to be loaned. 23. Where a party was in pos- session of knd, under a decree of the chancery court, that he" should pay a certain sum of money in a given time, ' and that a lien for its payment should subsist on the land, and the party remained in posses- sion for twenty years from the time- appointed for payment, the pre- sumption -'will be that the money 318 LIMITATI0I!IS, STATUTE OR was paid, and the .title will be aji- solate. Stark v. Gildairt, 5 How. 606. 24. .Where the statute of li'mita-. lions of six years, to open accounts and notes, excepted accounts be- tween merchant and merchatit, -it seems that such accounts will not be barred^ even though no dealings have occurred between the ^rties for more, than six years priot to the institution of suit. Fox v. Fisk, 6 How. 328. 25. To- constitute an account be- tween merchant and merchant, the account, when the cause of action accrued, must be unsettled, current, and mutual; if the'"accounts be stated or closed, or if a balance has been struck and admitted, and there be' no more mutual dealings be- tween the parties, the statute will run and apply to such .accounts ; they will cease to be within the ex- ception. Ih. 26. The statute of limitations, prescribing the time in which claims must be presented against the estate 'of deceased'persons, can- not be set up against the stale. Parmilee v. McMU, IS. & M. 179. 27. The statute of frauds, mak- ing three years possession vest the _j_ title to personal property, does not apply, unless the possession"' has been for three years in this state. I Palmer v. Gross, 1 S. & M. 48. 28. See Executoi" and Adminis- tFator, 74, 75, and 78 ; for what notice will save bar of the statute, requiring presentment, and when the bar will commence running. 29. Though, as a general rule, when the statute begins to run, no subsequent disability' will stop it ; yet a disability created by positive statute, is an exception, ; the^iififore, , the period of nine months, iji which executors and administrators can- not be sued, must be added to the six years, to constitute the bar of the statute of six years, on a note made by the deceased. Dowell v. PFeMer-, 2 S. & M. 452. 30. Whether the statute of this state, fixing the period in which claims must be presented against estates of deceased persons, and providing, that on a failure to pre- sent, the claim is barrecf, and tlie estate is discharged from the debt, is anything more than a mere stat- ute of limitations } Quare ? John- son v. Planters Bank,- 4 S. & M. 165. It is, in substance, but a stat- ute of limitations. Miller v. IVus- tees of Jefferson College, 5 S. & M. 651 ; jCohea v. Commissioners of inking Fund, 7 S. & M. 437. 31. To take a case out of the statute of limitations, an express acknowledgment of the debt, as a debt, due at that time, or an express promise to pay it; must be proved to have been made within the time prescribed by the statute ; a party's saying, therefore, that " he recol- lected the note well, had thought of it often, and expected to have heard of it before ; that it was a just note, but that he had offsets against it ; " will not take the case out of the statute. Davidson v. Morris, 5 S. & M. 564. 32. The plea to an action, to re- cover for a physician's bill, that the account had not ^ accrued within three years, is bad ; -the limitation of three y«ars,^not applying to such a case. Hazlip v. Leggett, 6 S. & M. 326. 33. In 1818, a widowed mother ptiichased a slave, partly with funds of her own, and'j^artly of her children, and received the slave in- to her possession, and in 1825, the mother la&vmg married again, her MALICIOUS PROSECUTION. — MANDAMUS. 319 hu?band conveyed the slave and her increase to the chil4ren of .the second majriage ; in 1833, the children of the first njarriage be- came of age, but took no steps to assert their rights to the slaves, un- til 1841 : Held, tha^ they were barred -by the statute of limitations. MurdoctVf;Hughes, 7 S. & M. 219. 34. Where a pur(jhaser of pro- perty buys it with fhe money of anotiier, tte' trust tfigreby created, in favor of the party whose money is thus used, is an implied and not an express one, and is subject to the statute of limitatipns, continuing express trusts fortjfiing the only class protected from the operation of the statute ; where, therefore, the trustee denies the right of the cestui que trust, and asserts an ad- versary claim, it is an abandon- ment of -the fiduciary character, and the statute of limitations will commence running from that day, if there be no -.disability as to the other parti^es. Ih, 35. It is not a good plea, in bar of an action, on a note, iristitued in 1842, that on ,t|ie 7th 'of May, 1839, the plaintiff" recovered a judgment against the defendant, on the same note, which judgment was reversed, on error, at the Jan- uary term, 1841, of the high court of errors and appeals, and that ,more than one year had elapsed, after the reversal of the judgment, before the . plaintiiF recommenced his suit ; the statute, which allows "an acfion within one » year, and not after, from the reversal of a judg- ment, by the high court of errors and appeals, does not abridge the time of limitation, but enlarges the plaintiff"'s privilege, in case the bar has become complete, pending liti- gation ; it therefore does not pre- vent a second suit, after reversal, though not instituted within a year, if the general statute had not" run ; such provision cannot be made the subject of a 'plea ; the • defendant can only plead the general statute, when the plaintifl[^ may reply that he sued within six years, and his judgment was reversed, and he sued again within one year after the reversal. Lang v. Fatheree, 7 «. & M. 404. M. MALICIOUS PROSECUTION. See Instruction, 3 ; how far court can instrtict jury there was a want of probate cause. MANDAMUS. 1. The supreme court has power to grant 'a mandamus. Ex parte JJofedre, Walk. 412. 2, The circuit court will, by mandamus, compel the county court to settle and allow all claims against the county, and to levy a tax for their liquidation, if it re- fuse. Madison Court v. Alexander, Walk. 523. §20 MANDAMUS. — MECHANICS' LIEN. 3. An application for'a writ of mandamus, is addressed to the sound legal discretion of the court, and will not he awarded to enforce the performance of an act, which is contrary to law ; where, therefore, by law, the tax-collector was re-^ quired to pay all moneys, by him collected, into the state and countf treasuries ; an order of the board of police to a tax-collector, to pay the taxes collected to a particular person, not the county treasurer, is without authority of law, and a mandamus shquld not be issued to compel the tax-collector to obey it. Ross V. Lane, 3 S. & M. 695. 4. Where a mandamus was is- sued by the circuit court to a tax- collector, to collect a certain tax, and he appealed, and pending the appeal, his term of office expired : held, that the high court would not grant a mandamus against his successor. lb. 5. Whether a mandamus is the appropriate remedy to compel a sheriff to make a deed to property which he has sold.'' Davis v. Pyj/o/-, 6 S. &M. 114. MECHANICS' LIEN. 1. When, underthe law of 1821, the contract between a mechanic and his employer is reduced to writing, and filed in the clerk's office of thexjeunty, withiiS! three months frojfTits ■ making,''tbe me- chanic - wiM, 'Irave a-"fien on thq 'fbuildM^'cpptracifed for, even as ^agaiim a purchaser of the property, who had no actual knowledge of the existence of the lien ; and when the legal title to the propeity.,*rasr not in the empld^er, the la^ favoi the claim of the' mechanic. Byi^ V. Brian, 2 How. 874. 2. The mechanics' lien law of 1840j which, provides, that where a mechanic is seeking-»t6 enforce his claim, under the statute, he shall file his -petition in the circuit cpurt, setting out the facts of the case, and describing the property on which the lien is claimed ; that the petition shall be docketed on the common law appearance docket, and the court shall be governed by the same rules *of evidence that are observed in suits at law, and, upon judgment in favor of the plaintiff, the execution shall issue, describing the property to be sold on which the lien'attacShed, is not unconstitu- tional ; it does not confer equitable jurisdiction on the circuit courts, but is throughout a legal remedy ; and the sale, under the execution of the property described in. the petition, will relate back to the commencement of the lien under the contract ; it is a common law- suit ; is to be tried by a jury, and their verdict for the plaintiff will be construed to be an allegation that the statements in the petition are established as true. Richard- son y. Warwick, 7 How. 131. And it is not necessary to the validity of* a mechanic's lien, under this law, that the contract for labor and ma- terials should be in writing; the lien will hold on a pfirol contract, if the suit be brought in proper time. Harrison v. Breeden, 7 How. 670. The act relates only to contracts made subsequent to its passage. The law of 1838 will be in force as to contracts prior thereto. Andreies v. Washburn, 3 S. & M. 109. ' . 3. .In such case, thJe mechanic ,e see proper, take out ex- ecution generally, tobe levied on any property of the defendant, in which event he waives his special lien. lb. MECHANICS' LItJN. — MERGER. — MORTGAGE. 321 4. Under the. statute of Feb. 15, 1838, a bill in chancery will be sustained, to enforce the mechanics' lien, where a judgment at law has 'been obtained, and the bill. avers the performance of the work ac- cording to the contract, the institu- tion of the suit within the pre- scribed time, and the rendition of the judgment. Andrews v. Wash- burn, 3 S. & M. 109. 5. In a suit at law, by petition, under the mechanics' lien law, .to subjebt alleged property of the de- fendant to the payment of an al- leged mechanic's lien in favor of the plaintiff, if the defendant be a non-resident, it is error to grant an order of publication against him, and on proof thereof to render a judgment by default ; such judg- ment will be absolutely void for want of due notice. Falconer v. Frazier, 7 S. & M. 235. 6. Where a petition, under the ■mechanics', lien law, was filed against two persons, one of whom plead and the other made default, and judgment by default was ren- dered against the latter at one term, and judgment on the issue, at the next term, for a less sum, was rendered against the other, it was held to be erroneous ; as the plaintiff could not have, in the same suit, two distinct j'udgments for dif- ferent sums, n, 7. In a petition, under the me-, chanics' lien law, the title to the property sought to be subjected, to the lien cannot be brought in issue ; an issue, therefore, tendered by the defendant to such a petition, that he was neither proprietor nor lessor of the premises, will be an imma- terial one ; nothing is affected by the judgment on such petition but the interest of the party to the re- cord ; if he have no interest, fhe judgment will confer no lien ; the lien will be confined to the actual interest ; the rights of third per- sons, not parties to the suit, will re- main as they were previously. .lb. 8. See Guardian and Ward, 13 ; the land of ward cannot be sub- jected to mechanics' lien for build- ing erected thereon by guardian. MERGER. Merger is the operation of law, by which a greater and a less estate coincide and meet in the same person, without any interme-- diate estate, it pre-supposes the prior existence of the lesser estatp.; where, therefore, B., by his will, left certain slaves to his daughter for life, and after her death to re- vert to the gross estate, and be dis- posed of according to that, and the will made no disposition of the gross estate ; held, that the life estate of the daughter would not merge in her claim as heir, ,but that she would take only a life estate, and her children, living at the time, on her death, would be remainder- men. Magruder v. Stewart, 4 How. 204. MORTGAGE. 1. An equity of redemption in land and personalty, is subject to sale, on an execution upon judg- ment, in this state ; but the interest of the mortgagee is not. Hunter V. Hunter,Wa.\k. 194. Sed aliter, as to personalty. See ThornhMl v. Gilmer, 4 S. & M. 153. ,/-'' 2. How far widow devisable in equity of redemption. See Dower, 4,8; 322 MORTGAGE. 3. A subsequent mortgage, duly recorded, withont notice to mortga- gee, of a prior one, unrecorded, will take precedence of it. Pomet v. Scra/iton,. Walk. 40&. 4. The mortgagor of slaves is not liable for hire, on forfeiture of the condition of the mortgage. Turn- hull V. Middleton, Walk. 413. 5. The issue of such slaves are not subject to the lien of the mort- gage. lb.^ 6. A., holding a mortgage of B., and filing a bill to foreclose it, can- not be defeated by B.'s showing that A. promised, ftom benevolent feelings towards B., without any consideration, to buy certain pro- perty, .at sheriff's sale, of B., and permit B. to redeem it at a fixed price, and that A. had thus bought B.'s property ; and, upon the price agreed upon being put upon it, the mortgaged debt would be extin- guished in part. Mercer v. Stark, Walk. 451. 7. Where A. sells land to B., and B. mortgages . the land to A. to se- cure the purchase-money, B.'s wife is not entitled to dower as against A,, and those claiming under him, but is as to the rest of the world. See Dower, 8. 8. See Trust, 6 ; for mortgage with power of sale by trustee. 9. A decree, on foreclogure of mortgage, ordering execution for any balance not satisfied by the sale, is erroneous ; the remedy for such balance is at law. Stark v. Mercer, 3 How. 377. 10. An absolute bill of sale, with a condition written underneath it, that it should be void on the pay- ment of a sum certain, on a day named, is but a mortgage. Kent V. Allbritain, 4 How. 317. 11. And if an additional sum be loaned on the faith of the same bill of sale, and further time given to redeem, those facts may be shown by parol. lb. 12. Whera a bill is filed to re- deem a mortgage, and the defend- ant answers that he has bought the equity of redemption, being matter in avoidance he must prove it fully. lb. .13. Where a mortgage on a slave was given, and the slave delivered to the mortgagee, he will be held accountable for the hire, to be credited on the mortgage debt. lb. 14. A bill to redeem mortgaged property must contain an offer- to pay the mortgage-money ; but a prayer for an account will be a sufficient offer ; therefore, in a bill to redeem a mortgaged slave, an allegation by the mortgagor, of a tender of the mortgage-money, be- fore it was due, and a refusal to receive it on -the ground that the mortgage-property was not held by virtue of a mortgage, but of an ab- solute bill of sale, accompanied with a prayer for the redelivery of the slave, and an account for its hire, is a sufficient offer to redeem. Edgerton v. McRea, 5 How. 183. 15. Where a mortgage was ex- ecuted to secure the payment of rnoney due by instalments, and, after all the notes had fallen due, a bill was filed to foreclose, the court ordered that the proceeds of the mortgage should be applied to the notes pro rata, and refused to direct an application of the money to the first note, though it was se- cured by an accommodation in- dorser for the mortgagor. Parker v. Mercer, 6 How.. 320= So, also, the proceeds of property secured by deed of trust, must be applied ratably .to the different notes. Gage V. Her, 5 S. & M. 410. 16. If the payment of a note be MORTGAGE. 323 secured by mortgage, and the note be barred by the act of limitations, and the mortgage not, the party may pursue his remedy op the mortgage, which is not barred. Miller V. Helm, 2 S. & M. 687 ; Miller v. Trustees of Jefferson Col- lege, 5 S. & M. 651 ; Trustees of Jefferson Collegev. Dickson. Freem. Oh. 474. 17. A mortgage, duly recorded, is constructive notice to every body ; therefore, the statute requiring pre- sentation of all claims to the afl- ministrator, within a given time after publication, or they will be barred, does not apply to notes se- cured by mortgage, as they are always in a state of presentation. lb. 18. See Chancery, 138, for power to aid, by superior court of chance- ry, foreclosure of mortgage in cir- cuit court. 19. The legal effect and opera- ' tion of a mortgagfe of personal pro- perty, after the condition is forfeit- ed, is to invest the mortgagee with an absolute ownership in the pro- perty mortgaged. Thornhill v. Gilmer, 4 S. & M. 153. 20. See. Fraud, S^c. 31 ; posses- sion by mortgagor, not fraudulent. 21. The assignment of a note, secured by mortgage, carries the benefit of the mortgage along with it to the assignee. Terry v. Woods, 6 S. & M. 139. • 22. Where the assignee of one of a series of notes, all secured by mortgage, sues the debtor at law, and arrests him upon mesne, pro- cess, and afterward, from the ina- bility of the debtor to give bail, and out of clemency, discharges him from the arrest, the mortgage lien of such assigned note will not there- by be divested, or taken away ; it seems it would be otherwise, if the discharge were upon an arrest on final process. lb. 23.- Where the holder of one of a series of notes, secured by mort- gage, upon the arrest on mesne process of the judgment-debtor, dis- charges the debtor from the arrest, and at. the same time receives a steamboat from him as collateral security, which he afterwards ex- changes with the debtor for notes, also as collateral, which prove worthless ; the holder of the as- signed note does not thereby dis- charge the lien of the mortgage as to the nota so held by. him. Ih. 24. Where a decree was ren- dered, at the suit of the holder of one of a Series of mortgaged notes, against the mortgage-debtor, sub- jecting the property mortgaged to the payment of the mortgaged debt, and in neither the pleadings nor proof, did it appear that the mort- gaged property was an inadequate security for all the mortgaged debts ; held, that, at the mere sug- gestion of counsel, that such might be the case, the decree would not be reversed, lb. 25. Where the holder of one of a series of mortgaged notes in- dorses it to a third person, before due, and. after its maturity and non-payment takes it up, and be- comes again the holder thereof, he will not thereby lose his recourse upon the mortgaged premises, but will be substituted again to his original rights. Ih. 26. See Infants, 3. Infant can- not redeem mortgaged premises sold under decree. 27. Where A. agrees to make a security in future, that is in equity an equitable mortgage ; but when- ever a mortgage is executed, ac- cording to the agreement of the parties, that is a merger of. the 324 MOETGAGE. equitable mortgage. Petrie v. Wright, 6 S. &M.647. 28. P. gave a mortgage to a rail- road company, as a security for the Deribrmance of certain work, and ithe chancellor rendered a decree ■of foreclosure of the mortgage, for a balance found to be due by P. to j the company, on an account stated I between them ; held, the mortgage I being a mere security for the per- I formance of work, and not for the i payment of a debt, the decree was erroneous. lb. i 29. See Circuit Court, 14 - 16 ; for jurisdiction and proceedings therein to foreclose mortgage. 30. It is necessary that a sale of mortgaged premises, made by a commissioner under a decree of foreclosure, should be confirmed by the court. Bowell v.. Sanders, 7 S. & M. 206. 31. C. conveyed two negroes to B., by a bill of sale, absolute and unconditional upon its face ; held, that it was competent for C. to prove by parol that the bill of sale was intended as a mere mortgage to secure B. a sum of money. Craft v. Bullard, 1 S.'& M. Ch. 366. 32. The only relief a court of equity can grant a mortgagor upon his mortgage, is to allow him to redeem his mortgaged property, upon a bill shaped for that pur- pose. Ih. 33. C. filed his bill against B..,. alleging that B. had obtained a judgment at law upon a note, to secure the payment of which he had conveyed to B. two negroes, and averring that B. had been in pos- session of one ever since the sale, and praying for an account of his hire and his value, and for an in- junction against the judgment at law,' but not offering to redeem ; held, that the injunction could not be granted. li. . 34. A mortgagor has no right to ■force the mortgagee to take the property at an assessed value, and cannot call for an account, upon any such principle. Ih. 35. A mortgagee who sells a portion of the mortgaged property, must account for the value of the property sold, and if slaves,, for their hire. Ih. 36. The interest of a mere mort- gagee, is in the nature of a chose in attion,. and cannot, therefore, be seized and sold under execution at law. Boisgerard v. Wall, 1 S, & M. Ch. 404. 37. See Partners, 42-45, for construction of mortgage given by each partner to the partnership to secure the partnership debts. 38. See Judgment, 138 ; mort'. gage takes date of lien from regis- tration. 39. See Partners, 43 ; surviving partner only proper party to fore- close mortgage to partnership. 40. E,., holding a mortgage on T.'s property, agreed to receive some money, and taJte the property back, in discharge of the mort- .gage ; T. paid the money, but re- fused to deliver the property ; held, that the mortgage was not ' dis- charged by the agreement. Roh- inson v. Thompson,.! S. & M. Ch. 454. 41. K. being surety to A. R., for T., was indemnified by a mortgage on T.'s property, and filed his bill to foreclose the mortgage, and be discharged from his suretyships held, that it was no answer to thiS' bill that T. had been garnisheed at law as a debtor of A. K., and that, the garnishment was still pending. lb. • ■ 42. The insolvency of the estate NATCHEZ, CITY OF. — NEW TRIAL, 325 of tlje deceased mprtgagor (|oes not suspend the action of the chancery court, in foreclosing the mortgage, and decreeing a sale of the mort- gaged premises. Cannon v. Kin- ney, 1 S. & M. Ch. 555. 43. A mortgagee, to whom prp' perty has been conveyed by rjidrt- gage, with a power of s.ale, cannot seil, without application to a court of equity. Fordv.Russell,Freem. Ch. 42." 44. A mortgage can only be dis- charged by a j-econveyance or an absolute payment, or satisfaction of the mortgage-money ; the substitu- tion of new notes, or securities, even of third persons, for the one /" recited in the mortgage, will not impair the lien of the, mortgage for the payment of such substituted notes, unless the mortgagee be proved, by pretty clear and positive iestimony, to have waived or aban- doned the lien. Heard v. Evans, Freem. Ch. 79.' 45. See Fraud, 45; whether mortgagee from fraudulent grantee protected, qucere 1 46. An equity of redemption in personal property, is not subject to seizure and sale, under an execu- tion at law. Valentine v. Planters Bank, Freem. Ch. 727. See Chancery, tit. Mortgage. N. NATCHEZ, CITY OF. 1. See Justice of Peace, 5, as- to power to grant distress warrant in city of Natchez. 2. The city of Natchez is a port of entry ; and a note payable to it, for port duties to be collected, is an illegal contract, beirig prohibited by the act of congress, admitting the state of Mississippi into the Union. Natchez v. Trimble, Walk. 376. NEW TRIAL.. 1. A witness, subpoenaed for the prosecution, voluntarily withdraw- 28 ing himself during the trial, before he is examined by the stat^, will not be ground for new trial for the defendant. If he desired his testimony he should have sub- pcBnaed him. State v. Blennerhas- sett. Walk. 7. 2. In a criminal prosecution, if the jury assess fine, the court will not grant a new trial, unless the fine be so excessive as to evince • partiality or corruption in the jury. Ibi 3. That counsel did not press the 'examination of a witness un- willing to testify, lest the court should commit him for contempt, is no ground for new trial. Hinds v. Terry, Walk. 80. 326 NEW TEIAL. 4. Nor is the suggestion of the discovery of new and material evi- dence, since the trial, unless the truth of the suggestion be fully es- tablished, lb. 5. If it is manifest to a reasonable certainty that justice has not been done, the court vi'ill grant new trial. Taylor v. Sorsby, Walk. 97. 6. It is- an evident mistake in point of law, for the jury to take out a deposition not read on the trial, and constitutes a strong reason for granting a new trial, lb. ; atiter, if the paper taken out by the jury be rejected instructions, asked for and refused, it not ap- pearing that the paper was con- sidered by the jury. Goode v. Linecum, 1 How. 281. 7. When the jurors depart from the bar, should they doubt as to the testimony given them, they may hear one of the witnesses again, 80 it be in open court, and in the eame manner propound any ques- tion to the court, but this cannot be done, except in open court ; and if the jury examine a witness sworn on the trial, otherwise than in court,- though he only repeat the same testimony which he gave on the trial, the verdict will be pet aside. Offit v. Vick, Walk. 99.' 8. It is unlawful for the jury to separate before they return their verdict, nor will it be any excuse that a sworn constable attended the juror when he separated from his fellows, unless he did so under the permission of the court. lb. 9. At common law, the jury could take out no evidence, except certain writings under seal, unless by consent of the parties ; and though a statute of this state per- mits the jury to take out papers, read in evidence on the trial though not under seal, the court will not relax the rules of the common law beyond the provisions of the stat- ute, and therefore it will be error for the jury to take out a psfper not read in evidence by either par- ty.- lb. 10. Where a complainant, in a bill for a new trial at law, appears to have had a good defence, which he was prevented from making, or moving for a continuance or new trial, by accident, unmixed with negligence, he will be allowed a new trial. Ford v. Ford, Walk. 505. 11. The grant of a new trial being in the discretion of the court, it ought not to be allowed for excess in the verdict, where the plaintiff remits the excess complained of. Young v. Engleliard, 1 How. 19 ; Green v. Robinson, 3 How. 105 ; Hurd V. Germany, 7 How. 675. 12. See Evidence, 58 ; when new trial granted, for newly dis- covered testimony. 13. The court refused to grant a new trial where a statute passed since the judgment, would cure the defect on another trial. Lyons y. Jackson, I'How. 474. 14. A new trial at law will not be granted on the ground of newly discov-ered evidence, unless it be shown that it has come to the knowledge of the party since the trial ; that his failure to discover it sooner, was not owing to the want of due diligence, and that it would probably produce a different result ; and in such case the party applying for the new trial, must exhibit the affidavit of the witness, of what he can prove, or account for its non-production. Hare v. Sprmd, 2 How. 772 ; Rulon v. Ldntob, 2 How. 891. 15. See Juror, 20 ; when new trial granted for conduct of juror. NEW TRIAL. 327 16. A new trial will not be granted where tKe failure to make, the defence on the first trial was owing to negligence and inatten- tion of the party or of his coun- sel ; if the other party has been guilty of no fraud ; if, therefore, an attorney file a plea which does not cover his client's defence, it will be no ground of new trial. Crreen v. Robinson, 3 How. 105. 17. Where the attorney for the defendant, having been informed of the nature of his client's de- fence, neglects to file the proper pleas to enable him to make it, and when the case is called for trial asks to withdraw the plea, and on that being refused, asks to amend it, and on that being refused, a verdict is rendered, a new trial' will not be granted on the affidavit of the defendant, that he had a meritorious defence, setting out its nature. lb. 18. A new trial will not be granted, though the Verdict be against the weight of testimony ; as where in an action of trespass for killing a mule, there was some evidence to support the defence set up, and the jury found for the de- fendant, the court refused to disturb the verdict, although they said that, upon the evidence, th.e jury should have found for the plaintifl^ Dick- son V. Parker, 3 How. 219 ; Har- ris V. Hallidap, 4 How. 338. 19. A verdict which is unjust in giving excessive damages will be set aside ; as where an action was brought for breach of warranty of soundness of two out of three negroes, for which $2500 were given ; when it turned out in proof, one was diseased with small-pox, and one was idiotic and the other sound ; but it did not appear that the one diseased with small-pox, died, and the jury found damages $2200'; held, that the verdict was too large, and a new' trial should be granted. Ingraham v. Russell, 3 How. 304. 20. A new trial will not be granted, unless the verdict be un- warranted by the testimony ; where therefore A., contracted to do . a piece of work for B., and having done it, sued for the price, and proved that B. was often present while the work was going on, and knew the materials to be bad, and that a good job could not be made of them, and B. after the work was done, permitted it to be ex- posed to injury, whereby it might have become defaced, a verdict in favor of A. will not be disturbed, though B. prove the materials to be bad, and the work to have been badly done and worthle'ss. Collins V. Money, 4 How. 1 1 ; see Harris V. Halliday, 4 How. 336. 21. A new trial will not be granted on the ground of newly discovered-evidence, where the tes- timony might have been had, or its place supplied, previous to trial ; where, therefore, a deed, to which there was a subscribing witness', was excluded as evidience, for want of due proof of execution, the affidavit of the party, that, since the trial, he had discovered that the subscribing witness was living, thougji formerly supposed dead, was hot sufficient to obtain a new trial, because it did not appear that proper diligence had been used, .at the trial, to prove the subscribing witnesses', hand-writing. Bledsoe V. Little, 4 How. 13. 22. A new trial will not be granted because testimony was ad- mitted before the jury, the relevancy of which is not made apparent by the record ; where a new trial is 328 NEW TRIAL. refused, all the testimony must be embodied in the record ; and where all is not in the record, the propri- ety of admitting the part set forth will be presumed. Prussel v. Knowles, 4 How. 90 ; semhh Leach v.'Lebuzan, 2 How. 908. Excep- tions on the decision of a motion for a new trial must embody the substance of all the testimony, that the court above may consider the whole case, and decide as the cir- cuit court should have done. Phil- lies V. Lane, 4 How. 122. 23. A new trial will not be al- lowed on account of the introduc- tion T3f improper testimony, where it was not' objected to when intro- duced, .lb. 24. See Criminal . Law, 99 ; person not sworn, going into jury- room, ground of new trial.' .25. New trial not granted, if ver- dict correct, merely because the instructions wei-e erroneous, unless correct instructions would have changed the result. Hill v. Calvin, 4 How. 231. 26. Where ■ a bill of exceptions is taken to the refusal to grant a new trial, and the evidence is em- bodied, the court will presume that the substance of all the testimony, as required by the statute, has been inserted. Pickett v. Ford, 4t How. 246. 27. A court of chancery will grant a new trial at law, where the defendant has a good defence at law, but has been prevented from making it by fraud or accident, un- mixed with ally fault or negligence on his part ; where, therefore, a defendant, in a judgment at law, applied to a court of equity for a new trial, on the ground that he was absent from the state when the writ in the suit at law was served, which was returned by the sheriff to have been by leaving a copy at the defendant's residence, and that he never had any actual notice of the suit, and had paid part of the bill sued on ; held, that he was en- titled to a new trial, and an injunc- tion against the judgment at law. Jones V. Commercial Bank of Co- lumbus, 5 How. 43. But it is no ground for a new trial, that the complainant's attorney was ill at the time, and could nbt make the defence at law. He should have been there himself. Yeizer v. Burke, 3S. &M.439. 28. A new trial will not be granted for an erroneous instruction of the judge, where justice has been done, and it is not likely a different result will ensue on a different trial. Perry v. Clarke, 5 How. 495. 29. When the regular term of the court failed, and the defendant, being out of the county, had no actual notice of the special te^m at which his cause was tried, and, in consequence thereof, failed to make defence, a court of chancery will, on allegation of merits, award a new trial. Joslin v. Coffin, 5 How. 539. 30. See Criminal Law, 92 ; what showing insufficient to obtain new trial on account Of absence of a bill of sale, conferring titte to the property stolen, in the prisoner. 31. After two mis-trials, and a verdict on the third trial, for the defendant, in an action for a breach of warranty of a negro, where the proof was, as contained in the re- cord, favorable to a recovery by the plaintiff, the* court refused' to grant a new trial, inasmuch as it did not appear that another trial was likely to change the result. Philbrick V. Holloway, 6 How. 91. 32. Where a verdict had been NEW TRIAL. 329 rendered for the plaintiff in execu- tion, on a trial of right of property, and a new trial granted, and excep- tions taken thereto, embodying the evidence, and, upon a second trial, the jury found the other way ; if the first verdict was correct, the court will set aside the last, and establish the first verdict. Ross v. Garey, 7 How. 47. 33. Where the court takes a motion for a new trial, under ad- visement, to deliver an opinion in vacation, as allovired by statute, there must be a minute thereof made on the record, or the judg- ment will nc^be suspended. lb. 34. Affidavits for new trials are not parts of the record, unless made so by bills of exception, lb. . 35. The statute, which declares that no more than two" new trials shall be granted to the same party, does not prohibit a new trial where there have been two verdicts against the same party, but where there have been twO' new trials granted. Stamps v. Bush, 7 How. 255. 36. Where bill of exceptions is signed to the refusal to grant a new trial, and the evidence is embodied in the bill, this court will presume it to contain all the evidence, though the bill does not expressly so assert. 25. 37. A new trial Will.not be grant- .ed where the verdict is according to the justice of the case, because the judge mis-directed the jury, as to the weight of record testimony, vchen there was ample other tes- timony adduced to the same point. Cartwright v. Carpenter, 1 How. ' 328. 38. Where a vi\riety of testi- mony is submitted to the jury, and no instruction asked of the court, or question of law raised, a new 28* trial will not be granted, unless the prepondefance of evidence against the verdict is very great. Kellogg V. Budlong, 7 How. 340. 39. A new trial will not be granted on account of newly dis- covered testimony, when it is merely cumulative. See Evidence, 119; for a description of what is cumu- lative evidence. Vardemanv. Byrne, 7 How. 365. 40. Where an answer to a bill of discovery had been on file for three months, the plaintiff could pot be legally surprised at its pro- duction on the trial, and would not be, therefore, entitled to a .new trial on that ground. Robinson v. Francis, 7 How. 458. 41. The statute which author- izes either party to except to the grant of a new trial must operate mutually, as well for the party against whom the new trial was granted, as the one against whom it might be improperly refused; where, therefore, a verdict, obvi- ously right on the evidence, was set aside, and exceptions were filed to it, and on the next trial a verdict and judgment in favor of the other party were granted, the last ver- dict and judgment will be .set aside, and the first made to stand. Moore v. Ayres, 5 S. & M. 310. A different coarse might perhaps be pursued, if the last ver- dict were , rendered on the same testimony with the first. Wood v. The Am. Life Ins. and Trust Co., 7 How. 609. Yet, where a new trial has been granted and excepted to, a writ of error or appeal there- from cannot be granted until the termination of the second trial, and judgment therein. Bank of Lex- ington V. Taylor, 2 S. & M. 27. The grant of a new trial is not a final judgment from which an ap- 330 NEW TRIAL. peal or writ of error will lie. Ter- ry V. Robins, 5. S. & M. 291. 42. A court of equity will grant a new trial at law, where the judg- ment was obtained by fraud ; but the fraud must be clearly established, and it must appear that the plaintiff was guilty of no laches ; where, therefore, a defendant at law filed a- bill for a new trial, on the ground that the plaintiff at law had promised to dismiss the suit, q,nd therefore he had not attended to it, and the defendant failed to establish, by proof, the promise to dismiss the suit, he will not be entitled to re- lief. Land v. Elliot, 1 S. & M 608. ■ 43. Where improper testimony has been admitted, if there be al-so sufficient legal testimony to justify the verdict, without regard to that which is exceptionable, and it is clear that justice ha^ been done, and there is little reason to believe a different result would ensue upon a second trial, a new trial will not be granted ; in a doubtful case, the rule would be different. Barrin- ger V. Nesbil, 1 S. & M. 22. 44. A new trial will not be granted, when it appears that the jury found according to the weight of the evidence. Jenkins v. White- head, 1 S. & M. 157. But Where there is no evidence whatever to sustain the verdict, it will be set aside. Crockett v. Young, 1 S. & M. 241. Yet the verdict will not be set aside, unless it is a very clear case that justice has not been done. Lejlore v. Justice, 1 S. & M. 381. And if the jury find according to the weight of evidence and the law, even though opposed- to the tharge of the court, a new trial will not be granted. Van Vacter v. Brews- ter, 1 S. & M. 400. If, however, the verdict be against law and evi- dence, the high court will grant a new trial, though refused below. Tunstall v. Walker, 2 S. & M. 638. They will not, however, disturb the verdict, unless a great prepon- derance of testimony appear against it ; where, therefore, S., being an attorney at law, was employed'as such by E. to defend certam suits, specified in a list, then pending against E., and, for a fee in which, E. gave S. his note ; and S. after- ward agreed 'to defend E., without charge, in all other suits - against him at that term ; there was a suit then pending against E., in a branch of which S.^at a subse- quent term, took a fee against E. ; and in an action on the note for the fee, agreed to be paid by E., he set up a l^ilure of consideration, because S. had subsequently taken a fee against him ; it did not ap- pear in proof, whether the suit in which S. became afterwards en- gaged against E. was. one of those embraced in the list or not ; the jury found for S., and it v/as.held, that their verdict should not be dis- turbed. Elhey v. Stone, 5 S. & M. 21. 45. A party, having had two new trials in the. same case, is not entitled, under the statute, to a third new trial ; whether the statute would prevent a third new trial, where the verdicts were obtained by misdirection of the court, may be questioned, but it will do so where the finding was on the testi- mony alone. Munn v. Perkins, 1 S. & M. 412. 46. A motion for a new trial may, by a special order, be con- tinued from one term of the court to the next ; without such special order, it \yould expire with the term. Kane v. Burrus, 2 S. & M. 313. NEW TRIAL. 331 47. Where a judgment was ren- dered on a note, in favor of the ad- ministrator of a deceased person, and the maker filed the affidavits of witnesses, that they had heard the intestate acknowledge the payment of nine hundred dollars op the note, and also filed his own affida- vit that the evidence had come to his knowledge since the trial, and he had used due diligence to dis- cover it ; held, that the defendant was entitled to a new trial. lb. 48. Where a witness, when on the stand, from inadvertence, and because his attention was not called to the circufhstance, does not dis- close all his information of the merits of the case, it is not a suffi- cient ground for the party, whom the undisclosed information will a benefit, to obtain a new trial upon. Houston V. Smith, 2 S. & M. 597. Not even if the witness omitted to testify of a payment which he af- terwards remembered. Davis v. Presler, 5 S. & M. 459. • 49. T. E,. & Co. recovered a judgment against J., who moved for a new trial,, which was granted him upon his paying the costs of suit within 90 days ; held, that defendant was entitled absolutely to a new trial ; the payment of the costs was not a condition prece- dent ; he was entitled to it whether he paid the costs or not ; and if he failed to pay, the opposite party must resort to the legal remedy to coerce it. Johnson v. Taylor, 3 S. & M. 9?. 50. A new trial will not be granted because itnproper testimo- ny was permitted to go to the jury, where there was ample competent testimony -on the same point; as where, in an action on a lost note, the plaintiff's affidavit of its loss was permitted to be read to the jury, as evidence of the contents of the note, when there was also ample other evidence of its con- tents. Dains V. Black, 5 S. & M. 226. So; alsoj where the memo- randum-book of the sheriff was improperly admitted in an action by the sheriff to recover the price of real estate sold by him, when the verdict was sufficiently sup- ported by other evidence. Hand V. Grant, 5 S. & M. 508. 51. Where, in an action upon an open account, the plaintiff, after service of process on the defend- ant, and plea of general issue, ob- tained leave to amend his declara- tion, and under the amended declara- tion, filed a new account, differing in the items, in their dates, ai)d in the sum total, from that filed in the original declaration, upon which new account, judgment was ob- tained against the defendant, who filed his bill for a new trial on the ground of fraud in the plaintiff, in filing the changed account; held, that fraud could not he committed by filing a new account and de- claration where there was leave granted, and a previous service of process. Davis v. Presler, 5 S. & M. 459. 52. If a defendant, after service of process and plea by him, see proper to absent himself from the state during the pendency of the action and thus place it out of his power to be informed of the pro- gress of the case, he. does so at Kis peril, and can claim no exemp- tion from the consequences, lb. 53. The statute, which allows exceptions to the action of the cir- cuit court in granting new trials, makes it the duty of the. high court of errors and appeals to revisqjthe judgment of the circuit' court, aild do what that court should have 332 NEW TRIAL. done ; where, therefore, the de- claration against the indorsee of a note did not. aver demand and no- tice to the indorser, but as an ex- cuse therefor, averred the insolven- cy of the maker ; and on the de- fendant's plea of non-assumpsit, without any charge of the court, the insolvency being proved, a ver- dict was rendered for the plaintiff ; and the defendant moved for a new trial, which being refused, he em- bodied the evidence in a bill of ex- ceptions, and brought the case to the high court ; lieU^ that the statute of jeofails did not preclude the court from examining the case and grant- ing a new trial for want of evi- dence to uphold the verdict. Reaves v. Dennis, 6 S. & M. 89. 54. Where a case has been sub- mitted to a jury, and th§y have re- tired to consider of their verdict, it will be error for the court, without the consent of the parties, to ex- plain, at the request of the jury, a matter of law to them, bearing upon the case, upon which they notified him they had doubts. Taylor v. Manley, 6 S. & M. 305. 55. See Evidence, 193 ; the ex- clusion of a deposition because the name of the commissioner was blank when the commission issued not ground for new trial. 56. It is not ground, in equity, for a new trial at law, where a party, having a good defence, has failed to make it, that the grounds of his defence were not known to him at the time of the trial at law ; it must also be averred, that know- ledge of them could not have been obtained by the use of ordinary diligence ; where, therefore, L. filed his bill to be relieved against a judgment at law, recovered against him by M., and alleged that he was in partnership with C. in erecting a saw-mill ; that a settlement and dis- solution of the firm took place, and C agreed to pay all the debts, the debt to M. being one of them ; that the note on which the judgment was recovered was executed after the settlement, but antedated, and the signature of the firm of L. & C. made without L.'s authority, and that L. had no knowledge of these facts until after the judgnient at law ; held, that L. showed no ground for relief. .^Leggett v. Mor- ris, 6 S. & M. 72'3. 57. Where - the charge of the court is in accordance with the law, yet the jury find contrary thereto, and to the testimony, and the cir- cuit court refuse the new trial, the high court of errors and appeals will interpose and grant it. Garvin v. Lowry, 7 S. & M. 24. 58. To entitle the party to a new trial on the ground of surprise, he must show merits, and the surprise must be of such a character as care and prudence could not provide against ; the slightest negligence will defeat the application for a new trial, or occasion the imposi- tion of the most rigorous terms; where, therefore, a suit was brought in May, 1841, and a trial had, and judgment rendered in Novembe.r, 1843, against all the parties, and there was nothing in the record to impeach the correctness of the ver.- dict, except that one of the defend- ants filed an affidavit for a new trial, alleging that on the day be- fore the trial it was agreed between the plaintiflT apd himself, that the case should not fee tried until they could make an effort to compro- mise it, and that relying on the agreement he went home an3 re- turiied the next day, and found the case in progress of trial ; and that the agreement to compromise and NON-RESIDENT. — NONSUIT. 333 let the case stand over had prevent- ed his applying for le.ave to plead his discharge in bankruptcy since the institution of the suit ; held, that the' discharge as a- bankrupt was not a meritorious defence ; the ap- plication to plead it should have been made earlier, and the new trial refused. Thompson v. Wil- liams, i^. & M. 270. 59. It is a sufficient excuse for not making a defence at law, that the defendant was prevented by high water from attendance at the court — the creeks being so swollen that he 'could not cross them. Brooks V. Whitson, 7 S. & M. 513. See Chancery, tit. New Trial. NON-RESIDENT. 1. A non-resident, being sued in a state court for a sum ex- ceeding five hundred dollars, is en- titled, under the act of congress, on the performance- of the neces- sary requirements, to have the suit transferred to the next term of the United States circuit court, for the district where he is sued, and, on proper application to the state court, it will be error to that court to refuse the transfer ; nor will it make any difference if such non- resident be sued as executor ; and if the' United States court and the state ■ court wherein such non-re- sident is sued, commence their sessions on the same day, a fair construction of the act of congress, will give the non-r^ident the right to have the transfer made and re- turned to the next succeeding term of the court. Hill v. Henderson, 6 S. & M. 351. 2. See Chancery, 249 ; affidavit for publication for non-residents, must state their non-residence ; citizenship in another state will not do. 3. See Chancery, 197; a court of, no jurisdiction against single non-resident, not served with pro- cess, nor proceeded against in rem. 4. A non-resident who sends slaves to this state for sale, cannot recover of his agent the proceeds of their sale received by him ; their introduction into the state was in violation of law. If the contract of a foreigner is to be completed in, or has reference to its execution in a foreign country, and is repugnant to the laws of that country, he is bound by them. Woolen v. Miller, 7 S. & M. 380. NONSUIT. 1. The mere fact that in an action for use and occupation, where the sum claimed was an hundred dollars, the jury found a verdict for a less sum than the court had jurisdiction ofj will not entitle the plaintiff to a nonsuit after verdict, under the statute, un- less it also appear that he de- manded a greater sum, in order to evade the operation of the statute, which entitled the defendant to a nonsuit, when sued for a less surh than the court had jtirisdiction of. Wilson V. Owens, 1 How. 126. 2. A writ of error will not -lie from a voluntary nonsuit ; nor do the courts in this state possess the power to compel a party to a non- suit. Eioing V. Glidwell, 3 How. 332 ; Copeland v. Blears, 2 S. & M. 519 ; nor will the writ lie where 'the party suffers a nonsuit, with leave to move to set it aside during the term, and the court subsequently refuses to set it aside. 334 NOTICE. — NUISANCE. Thornton v. Demoss, 5 S. & M. 609. 3. It is error, at the return term of the writ, in an action in .the circuit court, to nonsuit the plaintiff for failing to reply to the special pleas of the . defendant ; if, how- ever, at the succeeding term, the plaintiff fails to perfect the pleadings instanter, the court may then -enter judgment of nonsuit ageansi him. Kain v. May, 5 S. & M. 368. NOTICE. 1. A purchaser is presumed to have notice of every defect dis- closed by any recital in any deed, essential to his title, and in order to protect himself in equity as a purchaser without notice, that fact must be averred in the bill. Chew V. Calvert, Walk. 54. 2. Persons standing by in silence when a sale of their property takes place, are not deprived of their rights, if the purchaser had notice, otherwise, of them. lb. 3. In judicial proceedings where constructive is substituted for ac- tual notice, it rests upon the party who seeks a benefit from such pro- ceedings, to show that such con- structive notice has been given. Moore v. Cason, 1 How. 53 ; see Guardian and Ward, 3, 4 ; Gioin V. McCarroll, 1 S. & M. 351; Campbell v. Brown, 6 How. 106 ; lb. 230. 4. See Deed, 25, and Posses- sion. Possession, notice of unre- corded deed, and title of occupant and creditors affected thereby. 5. See Deeds, 26, 27 ; mort- gage and deed of personalty must be recorded in the county where the property is removed to. 6. See Vendor and Vendee ; the vendor's equitable lien, passes with land to those who have notice. 7. See Judgment. Cannot be corrected after term, without notice. 8. See Process, for sufficient re- turn of service. 9. See Sheriff. Return of can- not be amended without notice. 10. See Set- Off, 21 ; as to how far publication, in attachment of an- other state, notice of transfer of the claim attached. 11. A mortgage duly recorded, is notice of its contents, and if the notes secured by it be misde- scribed as to their periods of ma- turity it will still be notice to a judgment creditor of the mortgagor since the mortgage, of the true description of the notes, and affect him with a knowledge thereof, and if he buy the land under his exe- cution, he will acquire but the de- fendant's equity of redemption. Rollins V. Callender, Freem. Ch. 295. NUISANCE. 1. A party owning a lot in a large cilyj cannot be enjoined " from building a house on his own ground," on the plea that it ob- structs the light and air of his neighbor-; the right to the enjoy- ment of an unrestricted circulation of air, can hardly be saicl^.to bg- Jong to the citizen of a large town. Gwin V. Melmoth, Freem. Ch. 505. ^ 2. Where aT)ill enjoining a man from erecting a chimney on his lot, because it endangered the com- plainant's house from fire there- from, alleged " that the. top of the chimney would be in a few feet of the complainant's kitchen, and OATH. — OFFICE, TENURE OF. 335 sparks of fire from it would easily communicate to the house ; " but it did not appear that the com- plainant could not guard himself by a fire-proof roof, nor that the danger was direct, immediate and imminent ; held, that the injunction should be discharged ; as courts of chancery never interfere in cases of nuisance, unless the complain- ant's rights are clear, either from contract, ancient possession, or where the injury complained of, is direct, not where there is a mere probable or consequential injury. lb. 0. OATH. An oath to the best of the par- ty's knowledge and belief, is a posi- tive oath to the truth of the things sworn to, and if false the party will be guilty of perjury. Harris V. Heberton, 5 How. 575. OFFICE, TENURE OF. 1. The constitution of the state provides that judges of the circuit court shall be elected, and hold their ofiices for the term of four years ; it also provides, in the sec- tion with reference to members of the legislature, that they shall be chosen every two years, on the first Monday and the day following in November ; and shall serve for the term of two years from the day of the commencement of the general election ; nothing is said in the con- stitution as to' when the election for judges shall take place ; but in an- other clause of the constitution, the first Monday and day following in November is spoken of as the day for the general election ; it was held that the term of office of the circuit judge would commence on the day of the general election, and if, in consequence of a vacancy, ar» election were held at a day subse- quent to that of the general elec- tion, the person elected would hold only the unexpired term of the office until the next general elec- tion for circuit judges ; aod would not hold for the period of four years from the day of his election. Smith V. Halfacre, 6 How. 582. 2. The tenure of all officers of the state who are named in the constitution, is for the term limited by the constitution and has its com- mencement and expiration on the day established by law for the gen- eral election throughout the state for the respective offices, lb. ; and if the legislature provide that an incumbent of an office shall hold until a given time and until his suc- cessor be qualified,, and make no provision for the election of his succes¥6r^ he can only hold until the end of the given time, the resi- due of the law being unconstitu- 336 PAEENT AND CHILD. tional. Houston v. Royston, 7 How. 543. 3. Where -by statute, the term of office of the '.clerk of the superior court of chancery, who by law was appointed by- the chancellor, was linaited to four years, and the statute did not prescribe the period of the commencement or termination of the term, upon the office being fill- ed, the incumbent will have a right to the office for the full term of four years from the date of his ap- pointment. Hughes V. Bucking- ham, 5 S. & M. 632. 4. Where an incumbent, of an office, the terra of which is fixed by statute, but the period of the Gomraenceraent and termination of the term is not fixed, resigns or for- feits the office before the term is expired and the office is filled by a new appointment, the new ap-. pointee will hold the office for the full term, and not for the unexpired terrn of the former incumbent. lb. 5. In March, 1833, by act of the legislature, the chancellor of the state was authorized to appoint his own clerk, but no tenure of office was fixed by the act ; in Decem- ber, 1833, by a general law, the tenure of all offices, not otherwise fixed, was limited to four years ; on the 9th of December, 1844, Hughes was commissioned by chan- cellor Buckner clerk of the chan- cery court for four years ; on the 8th of January, 1846, Buckingham was commissioned clerk of the same court for four years by chan- cellor Cocke, on the ground that the term of office of clerk of the chancery court, commencing in December, 1833, continued for suc- cessive periods of four years each and expired in December, 1845, leaving the office vacant ; held, that the law did not fix the com- mencement or end of the term of office of the clerk of the chancery court ; that Hughes, the incumbent, was entitled to his office for four years from the date of his appoint- ment and could not be ousted there- from ; and that thfe appointment of Buckingham was inoperative. lb. P. PARENT AND CHILD. 1. The sale by a father, of the lands of his child^ a minor, is void, under the common and Spanish law, if unauthorized by the decree of the proper tribunal. Griffing v.' Hop- Walk. 49. . 2. That the sale was for the be- nefit of the minor, does not render such sale valid. lb. 3. See Chancery, 134, as to gift from parent to child, and vi^hen can- celled at suit of parent. 4. A voluntary deed of slaves, of parent largely indebted, to his child, PARTIES. 337 is void as to prior creditors. Bo- gard V. Gdrdley, 4 S. & M. 302. 5. It seerps that a conveyance from a father, largely indebted at the time^ to his minor son, the con- sideration of which was the alleged past services of the son, would be Void as to creditors of the father ; yet it seems that if the father has waived his right to the services of h.is minor son, or the son is eman- cipated b|y marriage^ and become thereby entitled to his own labor, the faliier may comfraot with him, and remunerate hirn~fbr services Tendered^ and 'bee6Hae_Jia'ble for their .payment; Biek v. Grissom, . Freem. Ch. 438. 6. A deed from father to son, who was a minor, yet married, the consideration of which was in part the alleged services of the son, de- clared void as to creditors, because, 1. That the father was largely in- debted, and in failing circumstances, yet for four or five years prior to the eanveyance and until on the eve m" bankruptcy, the father had no reckoning with the son ; 2. The continued possession and occupancy of the land, after the sale, by the father; 3. The deed 'by which the father acquired title to the land was withheld from- record, until the deed ffom the father to the son was put on record ; 4. A conveyance of the saife land by the father after the sale to liie son, to a third person, tb secure a surety for the father, the son being held\eognizable of the sale from his "intimacy- with his father and familiarity with his busi- ness ; 5, An agreement between father and son, to deliver up to the son his note given in part of the purchase-money, because of a threateridfl sale under execution against the father, of a portion of the land ; which sale never took place, and yet fte deduction from the price was made. . th. PARTIES. 1. A mere stranger cannot move for revocation of letters of guard- ianship. Voilon y- Gbedson, 1 How. 295. 2. See Bills of. Exchange and Promissory Notes, 24, as to right of surety who has become one of the assignees of a note, to sue hia co-makers in his own name. 3. See Partition, 1, as to who must be parties to petition for. 4. The statute regards the usee as the real plaintiff, arid he must have an interest, legal or equitable^ in the cause of action. Netterville V. Stevens, 2 How. 642. 5. See Evidence, 17, as to who privies ;'and when deposition in one suitfadmissible, where parties differ- ent, in another. 6. It will be error in an action against two, wJiere, only one is served with process, to prbceed to^ judgment against one without discontinuing the action as to the other. Davis v,. Tiernan, 2 How. 786 ; Dennison v. Lewis, 6 How. 517. Actions ex contractu may also be discontinued as to part of the defendants, and judgment taken against thp others. Peytony. Scott, 2 How. '870 ; idem, if the note su- ed on be joint ; it being mad^ seve- ral by statute. , Lynch v. Commis- sioners of ' Sinking Fund, 4 How. 377 ; Woodhoiise v. Lee, 6 S. & M. 161. 7. So, also,- a judgment may be rendered by default against one de- fendant, and on verdict against another in the Same suit. lb. 8. The owners of the soil are proper parties to, and have a right 338 PARTIES. — PARTITION. to appeal from, a proceeding to subject, their land to public uses, in a mode directed by statute. Thomp- son V. Grand ' Gulf Railroad and. Banking Co. 3 How. 240. 9. The court of appeals will ad- judge according to the rights of the parties to the record, though the re- cord may show that other parties have a right paramount to either of the parties to th'e record. Goode v. Maysoa, 6 How. 543. 10. See Pleading, 69 ;- one firm may maintain an action at law against another firm, though "the Bame person be a common partner in 6achi - , 11. The execution of an appeal bond for a jury trial in the justices' court, makes the sureties therein parties to the suit. Wright v. Sitnr mom, 1 S. & M. 389. 12.. See Chancery, 128, 129; what unconnected parties may unite in bill. 13. The rights of those not par- , ties to a suit cannot be affected by the proceedings in the suit. Pren- tiss V. Melleri, 1 S. & M. 521 ; Murdoch v. ^Washhurn, lb. 546. 14. If all the parties to . an at- . t'achment at law are, non-residents, the court has no jurisdiction. Ho- sey V. Ferriere, 1 S. "& M. 663 ; otherwise, in .chancery under the statute. Zecharie v. Bowers, lb. 584. 15. If the clerk in entering* the record of the judgment, prefix it with' the title of parties not parties to the suit, it will not affect the Va^ lidity of the judgment itself ; which will relate back to the proper par- ties to "the suit. Grimhally. The Miss, 'and Alabama Railroad Co. 3 S. & M. 38. 16. Where execution issues against several defendants, one of the defendants may lawfully pur- chase under it. Robinson v. Parj ker,3 S. & M. 114. 17. Where the heirs have made a division of their ancestor's realty, and the creditor of one of them at- taches his interest, a decision in that suit will not affect the rights of the creditors of the ancestor. ' Bayrir ton V. Finnall, 4 S. & M. 193. 18. See Executor and Adminis- trator, H2 ; on death of joint ma- ker of a note, suit may be :^evived against administrator of' deceased maker and proqped, or be brought, jointly against him and survivors. 19. Where in a bill to recover the amount of a lost note, no ob- jection was made in the court be- low of a defect iri parties, it is" too late to urge that defect in the high court of errors and appeals. Truly V. Lane, 7 S. & M. 325. 20. A mere stranger without in- terest in the matters in controversy, has no riglit to question the validity of the title to the property, as be- tween the other parties to the sujL Bingaman v. Hyatt, 1 S.. & M. Cn. 437. - I See Chancery, tit. Parties. See Defree ; when it will not be set aside for want of formal dismis- sal as to parties not decreed against. PARTITION., ^ 1. In the partition of an estate among heirs and devisees, notice must be given to all the heirs and parties in interest, or they will not be bound by the act of the court making partition ; nor wUl a divi- sion made under the order of. the court without notice to all, on the application of persons claiming, but really having no intereSt in the property, and where there is no one made a party defendant, but PARTNERS AND PARTNERSHIP. 339 fine illegally acting as administra- tor, bind the real heirs and distri- bwtees. Vick v. The City of Vicks- hurg,l How. 379. 2. W. filed his petition in the probate court for a -partition of land ; alleging that he . had inter- married with One of several per- sons to whom the land had been jointly conveyed ; the other per- sons alleged to be interested in the land, answered the petition, and denied that W. had any right, title, or interest in the land, or any part thereof, and W. offered no evi- dence in support of his petition ; ■held, that the petition must be dis- missed. Ingram v. War, 5 S. & M. 746. PARTNERS AND PARTNER- SHIP. ' 1. A surviving partner cannot sustain an action at law against the administrator of , a deceased partner, on an unsettled account growing out of the partnership business. White v. Waide, Walk. 263. 2. It is, a' well-established rule, of evidence, that one partner cannot be so divfested of his interest in the firm by any act of himself and eo-partners, as to be made a com- petent witness in a matter relating to the partnership. Collins v. Flowers, 1 How. 26. , 3. One partner is not liable for articles purchased by his copart- ner in the name of the firm, which were not within the scope of the partnership, without proof that they were really for the benefit of the firm; as where A. and B. were partners in buying andselling hides, apd A. buys a- saddle, and has it charged, to the firm, A. and B. will not -be • liable, without proof that it was for the use of the firm. Goode v. Linecum, 1 How. 281. 4. The contracts of partners, being, joint and several by the stat- ute of 1836 ; it will not be error, in a suit on a contract against partners, to discontinue as to those on whom process is not served, an(} go to trial as algainst the others; perhaps aliter, by the common law. Lyons ■ v. Jackson, 1 How. 474. - 5. Service of process on ona partner, will not justify a judgment against all the partners ; and such a judgment on such service, be- ing joint, will not be' good against . those served with process. Pit- man V. Planters Bank, 1 How. 527. 6. Although one partner, not- withstanding the general rule that one cannot sue the other at law, may sue his copartner at law, where they have made a settle- ment, and agreed upon the balance, yet where an individual is a com- mon partner in two firms, no , en- gagement can be entered between, the ■ respective . firms so that one can sue the other at law, as .a man cannot sue himself. Calvit v, Markham, 3 How. 343 ; yet ■, see Pleading, 69, contra. 7« Where in a suit by one firm- against another, in each of which the same individual was a partner, it appeared that one firm was large- ly indebted to the ' other, and that the firm to whom the debt was due, was largely indebted to, the member of that firm, who was not the member of each firm, a decree may be legally made against the indebted firm, in favor of the one to whom the creditor firm was in- debted, lb. , 8. See-jBtZZs of Exchange, and. 340 PARTNERS AND PARTNERSHIP. Promissory Notes, 80 ; where one partner denies his liability undei- oath, and the others do not, the jury must find'for One, and figainst the other. 9. See Attachment, 24 ; a bond by one partner in attachment is sufficient and obligatory on the firm. 10. A person sued as a partner, upon an open account, admits the partnership by pleading non as- sumpsit ; instead of denying the partnership on oath as the statute .requires. Jameson y. Franklin, 6 How'.. 376. 11. In an action against part- ners for work and labor done, the plaintiff offered in evidence the ac- knowledgment in writing of one partner, that the account was a just one; held, that the evidence was proper to go before the jury, whose province it was to say whether the partnership existed when the written" acknowledgment was made. lb. 12. Where an order was drawn by a client on two attorneys at law practising in partnership, to pay to a third person, a certain sum out of a claim, in the hands of the attorneys for collection, and»one of the partners bad notice j of, and assented to the order, and the other partner afterwards purchased of his client the whole claim in their hands for collection, without having any actual notice of the previous assignment ; he!d, that the notice to one pai;tner was notice to ^oth, and that the right of the first as- signee would be protected to the extent of his assignment. ~ Fitch v. Stamps, 6 How. 487. 13. See Pleading, 69 ; one firnj, may sue another at law, though one person be a partner .in each. 14. : Under the" statutes of this state, mailing contracts of parties, joint and several, if one partner only be sued, a judgment cannot be rendered against the firm -, aB Witherspoen v. Cain, Walk. 407. 4. The plea of payment admits the execution of the bond sued on. Hine$ v. Rogers, Walk. 486. 5. See Assumpsit, 4 ; as to plea of payment, in actions of assump- sit, where plea of general issue, also, is filed, and verdict rendered only on the latter plea. 6. See Covenant, 1 ; how far pleadable in action of. 7. See Limitations, Statute of, %; how far pleadable to payments. 8. The presumption of payment of an open account, the . items of which were dated before the note of the party claiming the open ac- count, is a: question for the jury ; and the consideration of the note may be shown. Carprew v. Cana- van, 4 How. 370. 9. A plea of payment, purport- ing to file offsets^ but not doing so. 346 PAYMENT. — PERSONAL PROPERTY. may be disregarded. Miller v. Brooks, 4 S. & M. 175. 10. Any evidence of actual pay- ment may be given, in evidence, under the plea of non-assumpsit. lb. . 11. Where a plea of payment of the whole sum demanded, is filed, and the desfendant proves payment of part only, he is entitled to a credit of that part which he proves to be paid. Price v. Sinclair, 5 S. & M. 254 ; Cage v. Her, 5 S. & M, 410. 12. Where N. was indebted to M., on his own account, and also coHaterally, as surety for Y., and made payments to M., without spe- cifying to which debt they were to be appropriated ; held, that the law would apply the payments made, under such circumstances, to N.'s own debt.' Newman v. Meek, 1 S. & M. Ch. 331. ' 13. Where a bill of exchange was taken by a judgment-creditor from his debtor, the amount of which, if paid, was to be credited on the judgment, and the bill was not paid ; held, on a bill filed by the judgment-debtor, to enjoin so much of the judgment at law, that the judgment-creditor must either erisdit -the judgment, or deliver back,the bill of exchange. lb. 14. It is settled, that if a party who is indebted on a mortgage and simple contract, or tin a bond and simple contract, make a payment, and omit to a,pply it specially to one of the debts, the law will make the application, in the way most beneficial to the debtor ; that is, to thjB mortgage or bond. Poindexter v.La Roche,'! B. & M. 699. 15. Where a person who is in- debted, both on a bond and on a judgment, sells his land, and the purchaser makes him a payment,' without applying it to either the bond or the judgment, the law will apply it to the judgment, in exone- ration of the land. lb. 16. E. purchased land of P., which was incumbered by a mort- gage, executed by P. to W., as agent of L., to secure the purchase- money of the land, bought by P. of W., as agent of L. ; W. also held a claim, in his own right, against P., not included in the mortgage ; E., being indebted to P. for the land, paid the money to W. on P.'s account, not knowing that P. was indebted to W.,-individuallyj and without making any application of the payment: Held, that W. had no right to apply the payment to his individual debt ; and that the law would apply it to the reduction of the incumbrance jesting on the land. lb. 17. Where a creditor has two claims 'against the same debtor, one of which is well secured, and the other not secured, on a payme'nt being rriade, the court will apply the same to the payment of the claim, for which there is no secu- rity ; and- the -vsame principle will apply to set-off; where a bill is filed to foreclose a mortgage, aiid the defendant answers that the complainant is in debt to him, the court will order the latter indebted- ness to be set-ofi" against a separate debt, due the complainant, not se- cured by mortgage. Planters Bank V. Stockman, Freem. Ch. 502. PERSONAL PROPERTY. r 1. On a sale of personal proper- ty with warranty of title and de- livery of the possession, the vendee, before eviction, canndt set up the want of title in the vendpr as a bar PERSONAL PKOPEETY. 347 to the recovery of the purchase- money. Brown V.' Smith, 5 How. 387. 2. See Fraud, 13, 25, 31 ; where vendor retains possession after sale, ' oisgrantor, in a deed of trust, after forfeiture. 3. Personal, may as well be the subject of a conditional sale, as real property ; and although pos- session may be prima fade evi- dence of ownership, it is subject to be rebutted. Mount v. Harris, 1 S. & M. 185. 4. Property purchased upon con- ditions cannot be levied on by the creditors of the purchaser after the conditions have failed; especially if the parties had previously re- scinded the contract, n. 5. Without some statutory pro- vision, the registration of titles to personal "property is not required. Palmer v. Cross, 1 S. & Mi 48. 6. The statute of frauds, making ' possession for three years, vest the' title to personal property, does not apply, unless the possession has been continued for three years in this state. lb. 7. Whether' a married woman can part ■with her personal proper- ty in any other-mode than the one prescribed by the instrument of settlement. Quisre 7 lb. - 8. The act of the legislature of 1822, respecting the title of per- sonal property, and requiring the deeds thereto to be recorded in the county where the property is situ- ated,' does not apply to convey- ances of personal property made prfor to the passage of the act. /*. 9.. See Chancery, \f>9 ; when court of equity will enjoin a sale of personalty. 10. Where personal property was sold on condition, and the contract of sale was not recorded, the pos- session continued in the vendee for three years ; held, that his title was absolute as to his creditors, and was liable to his debts. Lewis v. Gil- mer, 3 S.' & M. '560. 11. As a general rule, wjien per- sonal property is sold on a credit, the vendee acquires the right of property and the right of posses- sion, unless there be some stipula- tion to the contrary ; but if before possession be delivered the vendee becomes insolvent, the vendor may protect himself, if payment has .not been made, by refusing to deliver possession ; nor will it make any difference, that the vendee had de- posited nofes as collateral to secure the purchase-money, if no money had in fact been realized from sOch notes. Hunter v. Talbot, 3 S. & M. 754. 12. See Chancery, 287-290 ; -for sale of, by commissioners under decree of foreclosure of mortgage. 13. The removal by the grantor in a deed of trust, of personal pro- perty from the county iti which the deed of trust is recorded to another ipounty, will not, unless shown to nave been done with the permis- sion of the trustee or cestui que trust, affect the lien previously at- tached by the deed. Bogard v. Gardley,4 S.&,M.m2. 14. It is a general rule, that in an action for the price of a chattel, the vendee may prove, in defence, deceit on the part of the vendor, and that the article is of no value ; or he may show a partial unsound- ness in mitigation of damages ; he cannot, by his own act alone, re- turn and revest the property in the s'eller, and recover the price paid, on the ground of a total failure of consideration; nor can. he, by the same means, protect himself from the payment of the price on the 348 PERSONAL PROPERTY. — PLEADING same ground. Harmon v. San- derson, 6 S. & M. 41. 15. In an action for the price of' a chattel, proof that the representa- tions of the seller, at the time of sale, were fraudulent and the article of no value, will alone warrant a ver- dict for the defendant ; however far the evidence may extend in nnitiga- tion of damages. Ih. 16. Whether - the sale pf per- sonal property under a deed of trust, while the property is in the adverse possession of another, is binding. QM(8re ? Hundleyv.Buck- ner, 6 S. & M. 70. 17. Where personal property is sold for cash, the purchaser cannot take the property , or sue for it without payment or tendeir of the purchase-money. lb. 18. If, in the sale of personal property, both parties are equally cognizant of an alleged defect in title, and- there is no warranty nor fraud, the purchaser cannot avoid the payment of the purchase-mo- ney, -though hff lose the property by reason of the defect known to exist in the title. Hutchinson «| Minis, 7 S.&M. 388. ^ PLEADING. 1. In an action, on a contract to deliver a certain quantity of cot- ton, on demand, a consideration must be averred, and the omission to do ivis fatal, not cured by ver- dict. Minor v. MicMe, Walk. 24. 2. Where -the contract is to de- liver onerous property, on demand, ■and no time or place is specified for its delivery, in the agreement, a special demand must be alleged and .proved. lb. 3. Appearance and plea cure absence of, or defect in, original process. Delahuff v. Reed, Wall 74; Stevens v. Richer, 1 How 522 ; Young v. Rankin, 4 How. 2-' 4. Where the decla]»ation omit to state the time of the promise and the value of the articles sole and there is a plea and verdtc such omission will be cured by th verdict, lb. 5. An issue and verdict cure a defects in pleading, however fata on demurrer, if the issue be sue as to require the proof, on the tria' of the facts omitted in the plead ings. lb. 6. See Executors and Admirdi trators, 4 ; as to the mode in whici party should be described, to be i bar to second suit. Gushing V. Gil son. Walk. 87. 7. After plea of payment, i judgment by default is erroneous Selser V. Wilkinson, ■'Wei\k. 108 So, of any plea. Dickson v. Hef 3 How. 165. But not if the pl'ei be no answer to the action, such a covenants performed to an actioi on an administration bond, allegin| special breaches. Shropshire v Judge of Probate, 4 How. 142 So, also, of verdict and judgment oi non-assumpsit, when other plea are undisposed of. Bozman \ Broiim, 6 How. 349. 8. See Trespass, 2 ; as to forr (jf action for injury to slave whil hired out. McFarland v. Smitli Walk. 172. 9. In declaration on bonds witl condition, the condition need nd be set out in the declaration ; no need the words of the bond be used so their clear and precise legal ef feet be stated. Mutter v. Mks Walk. 205. 10. A verdict without judgmen will not sustain the plea of forme recovery. Bullery. Slephens,Wa\k 219. PLEADING. 349 11. On sustaining a demurrer to a plea, there should be a judgment of respondeat ouster. Douglass v. Hendricks, Walk. 230 ; Southward V. McLaughlin, lb. 325 ; Beatey v. Harkey, 2 S. & M. 563. 12. ■ The statute allowing more pleas than one, means legal pleas; the court may therefore reject a special plea, as frivolous, which amounts to the general issue. Moore v. Mickell, Walk. 231. 13. An averment in a replica- tion requires no stronger proof than oije in a declaration ; therefore, where, in a replication, the party pleading a promissory note averred its consideration, held, that he was not bound to prove it. lb. 14. A plea in bar is a waiver of a plea in aiatefnent. Pearce v. Young, Walk. 259. 15. See Executor, 9 ; as to proof under general issue. Dean V. McKinslry, 2 S. & M. 213; Webster v. Tiernan, 4 How. 352. 16. A count in debt upon a promissory note may be joined with a count upon a sealed * instru- ment. Mardis v. Terrell, Walk. 327. 17. See Jeofails, statute ofj|(5, 6 ; as to what defects in pleading cured by. 18. On demurrer to a replica- tion, the validity of .the plea may be considered. Miles v. Myers, Walk. 379. 19. A plea that the plaintiff's fence, inclosing his premises, was not sufficient, is no answer to a declaration that the defendant broke and entered the close, and with Jiis oxen destroyed and carried off two huadred bushels of corn. lb. 20. A plea of payment, without the items of offset, is nevertheless a good plea ; as the payment may 30 have been made in money. • Prim v. KiUridge, Walk. 390. And it. will be error to take a verdict on general issue without answering such plea. Webster v. Tiernan, 4 How. 352. 21. The plea of payment admits the execution of the bond sued on. Hines v.. Rogers, Walk. 486. 22. Nil debet is not a good plea to an action of debt on bond with conditions, where they are not set out. BarfieldY. jfiTearney, Walk. 504. 23. Pleasinabatement are looked upon with disfavor by the courts, and technical objections to them are sustained ; a plea fn abatement, therefore, which admits the juris- diction of the court, but does not make full defence, is bad on de- murrer. Babcock V. Scott, 1 How. 100. 24. Where th.ere is a demurrer filed in the course of the pleadings, the court should give judgment upon the first error in pleading ; the demurrer reaching back to de- fects in the previous pleading. Wreny. Span, J How. 115. 25.' Although executors and ad- ministrators are not bound to plead\ the statute of limitations, but may, ( by statute,,make the defence under the general issue, yet, if they at- tempt to plead the statute, they myst.do ,so strictly, and show af- firmatively that they come within its provisions, lb. 26. The plea of. the statute of limitations, by executor, of the non- presentation of the claim within the period prescribed by law, is bad, if it do not state when letters testa- mentary were granted, and that the two months' publication was made for six successive weeks, as required by law. lb. ,27. See Process, 5; for plea, in abatement to w^it. 350 PLEADING. 28.' In actions ex contractu, the verdict and judgment must be alike against all the defendants' or none. Jones V. McGahey, 1 How. 128.' 29. See Assumpsit, 4 ; as to where plea of general issue and payment are both filed, and verdicJt rendered only on the former. 30. To an action on a note dated at a particular day, and payable at a future one, and also on an ac- count, the plea of non-assumpsit infra sex arinos is fSot a good plea ; it should be that the cause of action did not accrue within six years. Slocumb V. Holmes, 1 How. 139. 31. A replication should answer the entire plea ; where, therefore, a' plea was to. the entire declara- tion, and the replication sets out predudi non, as to the second and third counts, it is bad. lb. 32. The statute authorizing the filing of several pleas, does not ex- tend to replications or any subse- quent pleadings ; where the de- fendant has put in more than one rejoinder to a replication, he may elect which he will rely oji ; but more than one is inadmissible, lb. 33. A plea to an action of trover for a slave, that the slave weis levied on l^y an attachment, at the defendant's suit against the plaintiff, and was delivered by the sherifi" to the defendant for safe keepiilg, and afterwards a judgment was ren- dered on the attachment by the ' justice, who ordered the slave to be sold, and' that the defendant held the slave by virtue of the writ of attachment levy, and by virtue of the order and judgment of the court, is bad, for duplicity. Welch V. Jamison, 1 How. 160. 34. In an action on a bond, the con- dition of which was, that the defend- ant should " pay the condemnation money, or render iiis body in exe- cution," and the breach averred thai he had not paid the condemnation money, it was held to be bad ; it should also have averred that he had not rendered his body in execution. Shaefer v. Minor, 1 How. 218. 35. See Real Estate, 12 and 13 ; as to plea of failure of considera- tion of note' given for land. 36. Sefe Chickasam Treaty, l,^ to variance, in pleading the treaty. 37. See Process, 6 ; may demur for variance between writ and de* claration., 38. Where the defendant, by his plea, admits a portion of the claim to be due, but avers a failure of consideration of the residue, he need not make a tender of the amount due ; the plaintiff can take a judgment nil dicet for it. Wil- liams v. Harris; 2 How. 627. 39. A plea beginning, " The de- fendant says actio non, any furthei than the sum of," &c., will be sufii- ciently formal where it admits, a part, but denies the residue to be due. lb. 40. The defendant cannot plead non assumpsit, and tender, to the whole declaration ; nor » can he pleat non assumpsit, and a plea admitting a part of the debt to be due; the latter plea will, in con- nection with non assumpsit, be bac on demurrer, lb. 41. A plea .that the considera tion of the note sued on had failed is bad, as being too vague and gen eral. 'lb. 42. A plea' in bar need not de scribe the defence with the same accuracy, that a declaration mus the cause of action ; and' where ! defendant to a suit, on a note, de sired to plead that the note wai given for negroes warranted to bi sound, and which were not sound he need not aver that the note wai PLEADING. 351 given in consideration of the war- ranty ; rior that the warranty was executed before the note. lb. 43. After a demurrer is sus- tained to a plea, and nespondeal ouster awarded, the defendant must plead to the merits issuably, and if lie plead a bad plea, the judgment will be quod recuperet. Davis v. iinghton, 2 How. 673 ; Brown v. Smith, 5 How. 387; • 44.' See Judgment, 30 ; nil de- bet bad plea to.action on judgment. 45. The plea of non damnifica- ius'is .a good "plea to an action on a bond which one partner gives to another, when guying out his in- terest in the partnership, to. save the retiring partner harmless, and pay the partnership debts; even though the declaration aver the non-payment, by the obligor, of a particulat' debt, and the payment of it by the plaintiff. Hough v. Perkins, 2 How. 724. 46. A general demurrer to sev- eral breaches is bad, if one breach Be good ; the demurrer should be special to each breach. Harmon v. Thompson, 2 How. 808. 47. See Executor and Adminis- trator ^ tit. Bond of; as to when and how put in suit, and for plAiings therein. 48. Whether, where there are two pleas, one of which is replied to, and the other not, and the case is submitted to the jury, who ren der a verdict, the trial on, the issue will be considered a waiver of the plea undisposed of, qucer'e ? Rob- erts V. Haley, 2 How. 886. 49. See Contract, 23 ; for what soi:t,of action to institute, where no promise express or iifipUed, exists. 50. See Abatement,2 ; for plea for non-joinder of parties, under act of 1837, requiring all ps^rties to a note to be sued in one action. That act is constitutional as to con- tracts made before its passage. R'appleye v. Hill, 4- How. 295. _ ■ 51. See Corporaiionf 3, 4 and 6 ; as to effect of plea of general issue in admitting the character .of the parties suing. 52. Under the statutes of this state, the plea of general issue ad- mits the execution of the instru- ment sued on. Cfreen v. Robinson, 3 How. 104; Ellis v. Planters Bank, 7 How. 235. But evidencg of alteration, since the execution of the note, may be given in evi- dence, under the general issue, not sworn to. Henderson v. Wilson^ 6 How. 65. 53. See Evidence, . S^ ; for cor- respondence oi allegata et probata., 64. See Bill of Exchange, 49 ; how promise laid, where indorser dies before debt due. . • • 55. See Deed, 20 ; for mode 'of pleading a claim under a deed of gift. 56. See Garnishment, Q; as. to how maker,.when sued, must plead payment as garnishee of payee. 57. The plea of non assumpsit,. sworn to, is, under the act of the legislature of 1824, prohibiting the denial of the execution of a note, except by plea," verified by oath, equivalent to th^ plea of non est factum, and puts" in issue the exe- cution of the note, whiph will be proved by, proof of the signature to the note. Sumpter v. 'Geron, 4 How. 263. And in case one is sued as a partner, and plead non assumpsit, sworn to, it will, be also a denial of the partnership. Fair- child.v. Grand Gulf Bank, 5 How. 597. -• 58. A plea is an appearance for party not served. See Ap- pearance, 3. 59. A contract, the. terms of 352 PLEADING. which coujd not • be understood without extrinsic aid, may be de-_ clared on, and the deficiency sup- plied by proper averments ; where, therefore, a suit was brought on this contract : " I promise to pay C. $480; it being for the public money due on a half section of land, one payment only being made ; the money to be paid agreeably to the requisitions pf the late law, made for .the benefit of former purchasers ; " held, that a declaration, averring what law was meant, what instalments were re- quired, and when due, would be ■good on demurrer. Riley v. Van- houfen, 4 How. 428. 60. Under the -statute of this ■state, authorizing a party to plead as many pleas as he may think proper, the proof of one issue is not dispensed with by any admis- sions made in another plea. Doss V. Jones, 5 How. 158. 61. A plea merely informal cannot be treated as a nullity ; therefoire, a plea to an action of as- sumpsit, that " the defendants come into coui-t, in proper person, and say they did not undertake or promise to pay as set forth in plaintiff's declaration, and they put themselves on the country," can- not be treated as a nullity. Tem- pleion V. Planters • Bank, 5 How. 169; Tomlinson v. Hoyt, 1 S. & M. 515. 62. Where a demurrer is with- drawn before argument or judg- ment on it, the defendant may, under the •permission of the 600.; Searles v. Scott,^ S. & M. 246. ■ 25. An appeal or writ of error does not lie from an interlocutory- order of the probate court, where no final judgment has beei) giv- en \ where, therefore, commissioA- ers of insolvency have reported upon the estate of the decedent, and the court under the. statute, refers a r^ected claim to referees, such order of reference is a mere interlocutory (jrder, and cannot be made the subject, of appeal, or writ of error ; it is besides a dis- cretionary matter with the judge to hiake the reference, and error therefor Vill not lie for the exer- cise of the discretion. Regdh v. SioMe, 4S, & M. 691. 26. The probate court cannot grant an ipjunction ; to do so is peculiar to a court of chancery. Scott V. Searles, 5 S. & M. 25. 27. Where exceptions to an ap- swer in the probate court, were over- ruled at the April term, 1843, and at the June term of the same year, a motion for a rehearing was made ; held,- that the motion came too late and should be overruled, lb. 28. An ^administrator of a de- ceased partner has no remedy in the probate court, by partition or otherwise, against the surviving part- ner, who has a right to the posses- sion and control of the partnership effects ; his remedy for the surplus of the partnership property, after settlement of the partnership lia- bilities, is either an actio)} of ac- count or bill in equity ; the prqbate court will, therefore, have no pow- er to compel a surviving partner to disGoveir the' am6unt of partnership effects in his hands, at the suit of the •administrator of the deceased partner. Ih. Nor will the probate court have jurisdiction of a petition against such surviving partner and a trustee, to whom the partner- ship effects have been transfeiTed. Searles v. Scott, 6 S. & M. 246. 29. The probate court has no jurisdiction of a bill to correct the general course of administration, by having accounts and reports dis- allowed, which the court had for- merly approved ; the objections should have been made to the re- ports and accounts ' when allowed. Harris v. Fisher, 5 S. & M. 74. 30. In 1843, various creditors of the estate of B., deceased, filed a bill in the probate court against the adfninistrators of B,, alleging that 364 PROBATE COURT. B., at the time of his death, had property sufficient to pay all his debts, and that it had come' to the hands of his administrators who had improperly used the assets, and, in the year 1838, had fraudulently procured a declaration by the pro- bate court, of the insolvency of the estate ; that the account upon which the. declaration weTs made was er- roneous upon its face, in showing that a large amount of . debt had been paid before the declaration m^de ; that all the debts reported were not those of the .deceased ; that a large amount of the' assets had beeii used Ijy the administra- tors, who had paid preferred cred- itors large sunis, and one of thei'n had retained a large sum due hira- s.elf ; that in 1839, the administra- tors, withciut notice and in yacation, had inade an erroneous settlement with the probate court, in which were contained unauthenticated and barred claims ; they prayed that the administrators might account for the assets, and pay the creditors if the estate were solvent, if not, their pro rata proportion ; heldy theft the probate court had no jurisdiction of the bill. lb. 31. In the absence of statutory directions, the modes of proc'edure adopted by the ecclesiastical courts of England are necessarily in force- in our own probate courts. Gowden V. Dohyns, 5.S. & M. 82. ' 32. Where the probate court has full jurisdiction of a matter, its judg- ment is final and cannot be dis- turbed, unless fraud is charged and proved ; where, therefore, an ex- ecutor, had given due notice ac- cording* to the' statute, presented his account and vouchers for final settlement and allowance, and the judge had examined, stated and reported his account for allowance and discharged:, the executor ; the judgment- of the court was held conclusive evidence that the proper vouchers had been filed^ unless the judgment -vas inipeached for fraud. Stuhhlifietd v. McBawere, 5 S. & M. 130 ; Jones V. Coouy lb. 751. 33. See Executor and Adminis- trator., tit. Who may administer ; for power of probate court to re- move administrator without notice ; to force him to give new security in vacation ■; or to issue ah order to the sheriff to take the intestate's property out of his possession. ' 34. Where an issue has been made up in the probate court and sent to the •circuit courf for trial before a jury, upon the rendition of the verdict, the issue must be sent back to the probate couVt for judg- ment ; and if the circuit court un- dertake to render a judgment upon such verdict, it will' be a nullity; and tio appeal or writ of error can, therefore, lie therefrbm, and if one be prosecuted, it will be dismissed; if -when the issue, after the Verdict has been sen't back to the probate court, that court refuse to grant a new trial, the whole proceedings may be brought up to ' the high cdurt of errors and appeals for' re- vision in all their partsj Wallace V. Wingate, 6 S. & M. 151. 35. See Executor and Adminis- trator, 99 ; probate court, has ju- risdiction of .petitiop by one admin- istrator against his co-administrator, to compel' the latter to inventory property of the estate, claimed by him as bis own. 37; The probate court has n6 power to appoint an administrator adi colligendum where there is one in chief Searles y: Scott, 6 S. & M. 246. 38. See Evidence, 199 ; formoie of taking down oral testimony in PROCEDENDO. -PROCESS. 365 probate court to be. used in high court. 39. The probate court has no jurisdiction of a bill filed by the as' signee of an open accpunt against the assignor, and the administrator of the administratrix of the debtor in the open account, to compel the administrator to pay the account to the assignee, on the ground that the administratrix, in her life-time, had promised the payment of it to the assignee, provided the account should be allowed to her in the set- tlement of her intestate's estate, and alleging that it had been so allowed ; but the administratrix had not paid it, and the* assignor claimed it as being due to him, McCoy v. Rhodes, 7 S. & M. 296. PROCEDENDO. The writ of procedendo lies only where there has been a neglect or refusal of justice by an inferior court ; on the simple dismissal of an appeal,- therefore, from the spe- cial court of justices, trying an ac- tion of forcible entry anfl detainer, such a writ will not be ordered. McGilvry v. Jackson, 4 How. 245. PROCESS. 1; Process must be signed either by the clerk of the court, or byJiis deputy in the name of- the clerk: Felder v. Mewdith, Walk'. 447. 2. See Waiver, 1. How far de- fect in process waived by recital in record. 3. A defendant may acknowl- edge service of process, but the court should not render judgment by (Jefatilt, thereon without being satisfied by proof of the handwrit- 31* ing of the defendant, in the ac- knowledgment of the service, by a witness. Harvie v, Bostic, 1 How. 106 ; Davis v. Jordan, 5 How. 295 ; Bozman v. Brower', 6 How. 43: I 4. A sheriff's return, on pro- cess, is conclusive of the fact, but where the return is made by an- other, it must be proved. lb. 5': Process which does not issue prior to five days before the term of the court next after its issuance, should bear test of the preceding term, and be returnable to the next succeeding that to be held at the expiration of the five days. A plea in abatement therefore to a writ that it does not bear test of the term preceding that to which it is returnable, should also state that it was not issued within five days of the term preceding its return term. Hurst V. Strong, 1 How. 123. 6. The writ of capias ad respon- dendum is part of the record, and a variance, between it and the decla- ration may be taken advantage' of as well by demurrer as by plea in abatement ; and where the declara- tion is in covenant, alad the process in debt,, the variance will be fatal. Gilleland v. Wilkins, 1 How. 574 ; but not after judgment by default. Shrock v. Bowden, 4 How. 426.- 7. A return on process, of " ex- ecuted by <»opy," is sufficient evi- dence of legal service. Keitliley V. Fisdale, 2 How. 683 ; Claiborne V. Planters Bank, lb. 727. Court will not question the legality of the return " executed." Smith v. Co- heq., 3 How. 35. 8. It is no objection to process, that it is not signed by the clerk with his own proper hand ; if it is issued with the clerk's consent and approbation, it is sufficient. Gam,-^ ble V. Trahen, 3 How. 32. 366 PROCESS. 9. A return on a writ, of " exe- cuted by leaving a copy at the boarding-house of the defendant," is insufficient service. Smith v. Go- hea, 3 How. 35 ; so also the return, " executed by leaving a copy at defendant's house ;" the statute re- quires, where the service is not personal, that the writ should be left with a free "white member of the fam- ily, over sixteen year|;of age, or in the absence of such, iit 6. Where a railroad company neglects to pay the owner of the soil, the damagfes awarded him for their right of way through his land, and he is exposed to the transit of the cars of the company over his land_for an. indefinite period, with but, little prospect of compensation, a court' of equity can grant him an injunction, restraining the com- pany from the use of the land. lb. 7. A railroad built by an incor- porated company for public travel aod transportation, is a mere fran- chisej_and not ' assignable by" tlie. ■CSrnpany. Robins v. Embry, , 1 S. & M. Ch. 207. 8. See Assignment for benefit of creditors, 1 - ]9 ; for assignment by a bank to which a railroad by its charter Was afiixed, and the effect an'd requisites thereof. REAL ESTATE. 369 REAL ESTATE. 1. Recitals in a deed, notice to purphasers, of defect in title thferein disclosed. Chew v. Calvert, Walk. 54. 3. A person standing by, in si- Ifence, at the sale of his real estate, does not forfeit his fight, if pur- chaser knew of his title. Otherwise. li. - 3. Where there is a deficiency in land sold, an injunction should be, grahted agg-inst the collection of the purchase-money. Simmons v. Lard, Walk. 1S9. . ■ 4. Under contract to convey title to land, with -tender of a deed by vendor, and possession taken by vendee,- the vendee cannot rescind the contract for a wp,nt of a good title in his veiidor at the time of ,sale, where the' vendor h£i,s sub- sequently procured and tendered a good title; Gale v. Green, Waljc. 159, ' • . •* • 5. Where B. is in possession of land, and A. represents ^ it as em- braced within the survey of a tract belpnging to A., and threatens to oust B. if he do not purchase A.'s , right, which B. accordingly does for cash, if it afterwards is made manifest that the l^nd is not em- braced by A.'s claim, a bourt of chancery^will rescind the contract, and decree a restpfation of the pur- .chase-jMoney, though it be ' not proved that A. was cognizant of the fact, that the land was not embraced by his claim. A con- tract may, be rescinded, on proof of mutual error, as wett as of fraud. Harrison v. Stowers, Walk. 165. 6. Administrator, no right' to possession of real estate. Carmi- chael V. Ddvis, Walk. 221. 7. A. sells land, to which he has not good title, and gives bond for title to B., who knows of the de- fect in_A.'s title'; thefe being no fraud, and B., not evicted, tior threatened witli eviction, cannot withhold the purchase-money. Miller v. Owens, Walk. 244. - 8. The purchaser at sheriif's sale of a tract of land, for which the defendant in the execution had only a bond 'for title, on payment of the purchase-money, takes it. subject to the lienj^or the unpaid son. Walk. 450. purchase-money, made v. Thomp- 9. See Land Laws, 6, and Chan- cery, 38; as to inquiry of phati- cery over fraudulent patentee of government. 10. A' court of law tannot in- 4uire into, and enforce a parol con- tract for the sale of land, although performed in part by delivery, of possession. Par/son v. West^ Walk. 515, " 11. Where there is a bond for title to land given, and the promise to pay ■ the purchase-money is in- dependent of the covenant to make title, the vendor may maintain hjs action for the purchase-ijioney, without having executed or ofTeyed to execute a deed to the land ; as where the first note for the pur- chase-nionfey falls due befoi:e the title is to be made. Mageman v. Sharkey, 1 How. 277; Leftwich V. Coleman, 8 How. 167 ; Recior V. Price, 3 How. 321 ; HazUp v. .iSfolarid, 6 S. & M. 294 ; Gibson v. Neioman^ 3 How. 341 ; nor can the vendee obtain a, rescission of the contract. Where he is in possession . under a. title-bond, and has agreed to pay the money before title is made, and there was no fraud in vendor and no eviction. Coleman V. Rowe, 5 How. 460 ; Andgrsoh V. Lincoln, 5 How. 279 ; Green V. 370 REAL JESTATE. ' Finucane, 5 How. 542. See in- fra, 50. 12. In an action for the pur- chase-money of land sold, for which a bond for title in fee simple was given, the plea that the vendor had ifepresented that he was lawfully seized and possessed of the land at the time of sale, and was by law authorized to sell the same, and had promised to convey the title in fee simplq, , in consideration ef which representations arid promise •the' note had^een executed, but that in fact these' representations were untrue, and' the reverse the truthj and the land was at the time Tn the adverse possession of an- other, and known to be sq by the yen- dor ; is npt a good plea. ; it .'does not plead _/flcfs but matters of law, and does not aver fraud in the vendor; which must notljeTeH to matter of inference, but must be directly charged. lb. 1 How. 341. 13. The vendor need not have title when he contracts to sell, .if he give bond for title, it will be suffi- cient if he have it when he is boundto make conveyance ; and a plea that he had no title when the contract of sale took 'place, without averring thg^t he had it not when the plea was pleaded, will be bad. li. 14. See Chancery, 306 ; a:s to resulting trust in grantee j who has taken the legal title to secure to hini a sum of money. 15. See Commons, 1, 5 ; as to dedication of yeal estate ; and see Partition, 1 ; as to who naust be parties to petition for partition. 16. See Executor and Adminis- trator, tit. Sales by ; as to how far purchaser at executor's sale with- qifewarranty, can set up defect in t^e^; as an excuse for not paying purchase-money, and Scire Facias 4 ! the necessity of revival of judgment against heirs to' sell land of ancestor. 17. Where A. contracted to sell lands to B., by assigning the certifi- cates of certain sections and parts of sections of land, describing the num- ber of sections, parts of sections, township and range, and the tiuiii- ber of acres, according to the cer- tificates of entry at the laild-office, and put ,B. in possession, and it turned out on a re-survey, that the lands thus sold did not come up, by one bundled and fifty' acres, to the amount called for by the certifi- cates of entry'-; held, that A. wsis not liable for the deficiency, and B. couldi not avoid payment of the purchase-money. -Moore v. Vick, 2 How. 746. 18. "Where A, contracts to 'sell " B. a piece of land, and informs hirrti that the title is to come through ' C., and B. accepts a deed from C, to the land, expressing a less con- sideration than he agreed to pay A., he .cannot afterwards object to the payment of the purchase- money, nor force C. ,to increase the warranty. as to quantity ex- pressed in the def d. Leonard v. Austin, 2 How. 888. 19. See .Trust Estate, 7 ; for what interest in real estate the sub- ject of grant ; and when the holder of the legal title declared a trustee for the beneficiaT owner. 20. See Evidence, 79,80,88; for admissibility of surveys of land, in evidenc'e. 21. Where metes and bounds and cQjuses and distances are called for by description in a grant, the quantity of land embraced is immaterial. Martin v. King, 3 How. 125. 22. The qiJestion which shall prevail, course or distance, in a REAL estate: 371 grant, depends on the circum- stances of each' particular case ; where an adherence to distance will leave an open line, course must be preferred, for it is an uni- versal rule that a survey must be closed. lb. 23. The mere figure of a map attached to a grant, will not con- trol the" calls for courses and dis- tances on it ; in all grants, certain proof of the lines, is the best evidence of identity ; in the ab- sence of that, fixed monuments and marked lines are the next best evi- dence ; in fhe absence of these, courses and distances must govern, and where they conflict, the map may be called in to aid in ascer- taining the locatiop. lb. 24. See Deed, 13 ; void for un- certainty aS to land sold. . 25. See,Dee(Z, 16-19; as to what color of title with possession, constitutes adverse possession. 26. Where lands were subject to preemption, and also to private entry by la^; and in order to prevent confusion the secretary of the treasury, required the registers. to exact of applicants for entry, affidavit that the land they, proposed entering, was not subject to a pre- emption right, and the register per- mitted an entry to be made without such affidavit, that alone will not vitiate the entry, in favor of a pre- emption claimant to the land. Car- ter V. Spencer, 4 How. 42. 27. Where, by act of congress, with reference to preemptions, and the rules of the secretary of the treasury on the same subject, direc- tory to the registers, it was provided that when a settlement was made on the corners of the sections, the pre- emption should be confined to that section where there was the largest improvement ; C. filed his bill, claim- ing a preemption in a certain |gc- tion, and alleging that one-third of his improvement -was in that sec- tion, 'and the residue in adjoining lands, held, that C. did not bring himself withjn the act a,nd rule, because he did not show that his largest improvement was inT the section he sought to locate his pre- emption. Ih. , . 28. See Execution, 19.; how far variance between judgment and ex- ecution vitiates IheriflF's sale. 29. See Forcible Entry and De- tainer, 8 ; how far possession of vendee, who has not title till he pays the purchascrraoney, is ad- verse .to the vendor. 30. Where the act of congress of 1803, gave a right of pre- emption in- a certain' district of country, restricted to lands not claimed by virtue of any British grant, and making it the duty of the commissioner, issuing certifi- cates of entry, to state whether such British claim exist; before he grants a certificate ; if the cornmissioners grant an unconditional certificate it will not. be permitted to inter- fere with a claim under a British grant ; the British claimant will still hold, in preference to the certifi- cate of entry, especially if the pre- emptioner has all the land his cer- tificate calls for, without conflicting with the British claim. Vick v. Peck, 4 How. 407, 31. See Chancery, tit. Fraud, for rescission of contract as to realty, for fraud "in vendor. ^ 32. See Fraud, 10 ; how far representations known to be false by vendee, are fraudulent as to him. 33. See Chancery, 147; no re- lief for- defect in title, granted prior to eviction. 34. The possession of real estate against a Niles V. 372 • is, of itself, protection title obtained in fraud! Anderson, 5 How. 365. 35. See Executor and Adminis- trator, tit. Sales hy ; sales of de- cedent's estates by administrators, pass no title to vendee, unless the decree of the probate court is made up, on the proper notice required by statute. 36.* The vendee of land, in or-, der to protect himself from an ad- verse title, as an ij|inocent purcha- ser, without notice, must not be a mere volunteer,; he myst have paid a valuable consideration. Doss v. Armstrong, 6 How. 258. 37. Vendor's eqiiitable lien does not pass to his assignee of the 'note for the purchase-money. Mriggs V. Hill, 6 How. 362. 38. See Chancer y,'269. Where vendor of land has given" title bond and taken notes, with surety, and assigned them, his assignee cariiiot subject the land to the note. 39. In the case of dependent covenants for the purchase , of real estate, where the vendee Seeks, to • enjoin a collection of the purchase- money until he gets title, he must tender the purchase-mbney, and de- mand a deed; if the vendor. fail to give it the vendee will be en-, titled Jo relief. Harris y.. Bolton, 7 How. 167. So, also, in a suit at law against the obligor in a title bond to make title when the pur- chase-money is paid, the plaintiff must show that the purchase-money has been paid, before he can re- fcovei'. Stockton v. George, 7 How. 172. 40. See Fixtures, 1. Where one has built a house on the land of an- other he may remove it. 41. See Vendor and Vendee, 11-17; what fraud will entitle to rescission of contract. REAL ESTATE. 42. See Contract, 47 ; vendee, by non-compliance with his own contract, cannot entitle himself to a rescission thereof. 43. See. Vendor and Vendee, 19 ;. right" of vendor, who has given a bond for title, to subject the land to pay the purchase-money. 44. See Execution, 54. Sci.fa. cannot issue against heir on a judg- ment against execiitor. 45'. See Executor and Adminis- trator, tit. Sales ^ ly ; a sale under ■private act of the legislature gpfld, if the act be strictly complied with ; void, if not ; the purcllaser will be allowed for improvements as a. set- off against rents. 46. See Vendor and Vendee, 21; for right to rescission of .con- tract of sale, where bond for .title giveii. . 47. SeeWill, 25 ; whether pow- er given to executor to sell all tes- tator's real estate, at his discretion, converts thereby the realty into personalty. / 48. See ' Consideration, 21 ; whether a covenant |o deduct from the p'uichase- money of land, is a real covenant, and j)asses with the land. Whetl^er the purchaser^wheji sued for the purchas,e-money, may not set up a failure of consideration to the extent of failure of title. , 49. See Execution, 60,; the in- i terest of the vendee of land, wHo \ has only a. bond for title, but \vhQ 1 has paid the purchase-money, is subject to seizure and sale under | execution at law ; otherwise, where all the purchase-money has not '' been paid. 50. Courts will construe cove- nants to be. dependent, unless a contrary intention clearly appear ; in an action, therefore, on a note given for land to which the vende^e received a bond for title, to be made " RECOGNIZANCE. — RECOKD. 373 when the purchase-money was paid, and that was payable in instalments ; the right to enforce payment is not distinct and independent of the abil- ity to make title, and the defendant may set up and show in bar of the action on the note, a want of title in the vendor. Peques v. Moshy, 7 S. & M. 340. See supra, 1 1- 13. 51. A covenant of general war- ranty, binding the grantor and his heirs in a deed of bargain and sale of real estate, is a real covenant, running with the land, and enures to the benefit of all subsequent purchasers. Torrey v. Minor, 1 S. & M. Ch. 489. RECOGNIZANCE. 1. See Variance, 5, for fatal va- riance between sci. fa. and recog- nizance. 2. See Criminal Law, 37, 38, as to when sheriff may take, and when notice of application for forfeiture must be made. 3. See Criminal Law, 44-47, for what sufficient recognizance. 4. At a court holden on the third Monday in March, a judgment was rendered on a recognizance made returnable to the third Monday after the fourth Monday in April, the legislature having, in the mean time, changed the court from the latter to the former time ; the judgment was held to be correct. McEwin V. The State, 3 S. & M. 120. 5. Where a party was indicted in four different cases, at the same term of the court, and recogni- zances were givea in. each case, vvhich were severally forfeited, and the clerk recited the forfeiture as having occurred " in these four cases," without specifying which 32 cases, or their titles, or identifying tliem in any way ; held, to be error. Overaker v. The State, 4 S. & M. 738. 6. Where a sheriff executes a bench warrant, if he take bail he should so state it, and return the facts in full to the court ; and if he return a bench warrant " executed," and say nothing of any recogni- zance, or bail taken by him, the mere fact that a recognizance is recited in the record, there being nothing to connect it with the case but its own recitals, will not be sufficient to uphold a judgment for a forfeiture upon it. lb. RECORD. 1. Where the record is so de- fective, that the true state of the pleadings and the action of the court below, cannot be ascertained, the presumption will be in favor of the correctness of the inferior court. Leath v. Wright, 2 How. 774. 2. The notes of the judge on the docket are no part of the record, and the record cannot be amended by them at a subsequent term. Dickson V. Hoff, 3 How. 165 ; Bur- ney v. Boyett, 1 How. 39. fiws- sell V. M'Dougall, 3 S. & M. 234. 3. The process which brings the defendant i(ito the high court of errors, the transcript of the record, excepting depositions in chancery suits, the assignment of errors and joinder in error, all the orders and the final judgment of the court, constitute the papers for final re- cord in a high court. Officers of Court V. Fisk, 7 How. 403. 4. Where the record is itself con- tradictory in its parts, that construc- tion must, if practicable, be adopt- ed which will make it sensible and 374 RECORD. —RELEASE. consistent, and not one which is wholly absurd and will preclude re- lief ; as where the bill of exceptions recites that a judgment, on a motion, for the defendant, was entered at the instance of the plaintiff, and the judgment itself recites that it was made on motion of the defendant, the latter recital will prevail. Woo- tentv. Wingate, 6 S. & M. 271. 5. Every motion made in a cause is a part of the record, as much so as the declaration, plea or judgmient. Puckett v. Graves^ 6 S. & M. 384. REGISTI^TION. 1. See Deed,passim. 2. See Judgment, 108 ; mortgage takes date of li&nj from date of re- gistration. REHEARING. 1. See High Court of Errors and Appeals, 14; maybe granted in extreme case, after the terrh has expired. 2. In the probate court, it is too late, after the term has passed, to move for a rehearing. Scott v. Searies, 5 S. & M. 25. RELEASE. 1. A deed which purports " to re- mfee, release and quit claim" title to laHd, is competent testimony on be- half of the releasee therein ; for even though the Words be not suffi- cient to pass an entire estate in land, yet they are sufficient to per- fect a title in one having claim of title ; and therefore as a link in the chain of title, depending for its efFect on other instruments or evi- dence, and as a constituent part of title, such deed is competent evi- dence. Sessions v. Reynolds, 7 S. & M. 130. 2. It seems that a mere release of title to land does not bar the' right to land of which another per- son is in the actual visible posses- sion, claiming a right ; yet it may be used as a conveyance of the es- tate to one in possession ; or as a mean of transferring or enlarging an estate by giving some new in- terest ; or as perfecting an imper- fect and defeasible estate ; and it seems that any interest in the per- son to whom the release is made, either by possession, or in deed, or in law, in his own or another's right, any vested interest even, without actual possession, will be a suffi- cient foundation for the release to stand upon. lb. 3. In a country abounding in , wild land, a deed or grant is a con- structive possession in the grantee, , sufficient to uphold a title derived by release from_one having title to the land. Where therefore the Span- ish government granted the same land, first to R. and afterward to F., and R. subsequently released to F. the constructive possession of F. under his grant, will be suffi- cient to uphold the release from R. /*. ' 4. Where a release of title to land was thirty-five years old, it was held to be of an age to draw to its support the favorable presump- tions of law that it was operative at the time of its execution ; which presumption is supported by proof of the possession of the releasee as far back as there is any evidence of possession. Jb. 5. The title to the Whole of a tract of land, with possession of EEMITTITUE. — REPLEVIN. 375 part of it, is a possession of the whole of it, and will support a re- lease of title to the whole, li. 6. In order to defeat a release it seems there should be proof of an actual adverse possession under a claim of right ; therefore, where the releasee was in possession long before there was any adverse claim, and, for anything that appeared to the contrary, was in possession when the release was made, it was held that the release would be op- erative, lb, 7- The objection to a release on the ground of the want of posses- sion, or other interest in the re- leasee at the time of its execution, looses much of its force when made in the high court of errors and appeals, for t}ie first time, and when the objection made to its ad- missibility in the court below, was - as to its authenticity, lb. 8. See Surely, 29 ; release of one is not a release of all. EEMITTITUE. 1. See New Trial, II j as to when remittitur removes ground of new trial. 2. A remittitur of excessive da- mages may be made by counsel. Pickett V. Ford, 4 How. 246 ; so, also, where the judgment is for a greater sum than the damages laid in the declaration, he may remit ithe excess. Hurd v. Germany, 7 How. 675. 3. The plaintiff in a forthcom- ing bond may enter a remittitur for an excess, on the hearing of a motion to quash the bond for such exeess. Ridgeioay v. Marshall, 5 How. 286. 4. Where a deposition establish- ing a payment of fifty dollars, has been- Improperly excluded from the jury, if the plaintiff will enter a re- mittitur of that sum with interest, the high court will not send the case back, but will render a judg- ment for the balance. Anderson v. Tarpley, 6 3. 65 M. 507. EEPLEVIN, AND EEPLEVIN BOND FOE EENT. 1. See Landlord and Tenant, 1 ; where tenant replevies, and land- lord gets verdict for less than he claims, tenant not liable to double damages. TerrelLv. Ligon, Walk. 170. 2. A party who claims property levied on under distress for rent due by another, and sues out his replevin therefor, is not liable to pay double the amount of rent due, unless he actually got possession of the property by virtue of his writ of replevin ; and where he failed to do so, it will be error to make up an issue and try the question of right, and, on the verdict being against the claimant, to assess dou- ble damages. Punchard v. Run- dell, 1 How. 508. 3. It is error to refuse to hear an application for a continuance in replevin, even though it would not have been error to have refused it when heard. Marshall v. Fulgham 4 How. 216. 4. A replevin bond, given for the payment of rent in three months under the statute, may be made pay- able to the sheriff conditioned for the payment of rent to the plaintiff; the statute is silent as to whom the bond shall be payable, but says, the sheriff shall take it, which will au- thorize it to be made payable to the sheriff, who may assign, it to the landlord, and the landlord may 376 REPLEVIN. — RETRAXIT. move on the bond, in the circuit court, against the obligors in the bond under the statute ; and on such motion, no defects in the ori- ginal proceeding's in the attach- ment for the rent can be taken ad- vantage of, as they are merged in the bond ; and where a three months' bond is given, which ad- ■ mits ~the rent, none of the papers in the original attachment need be returned to the circuit court ; but it is otherwise, where a WTit_ of re- plevin is sued out, denying the rent to be due, then ^lithe papers in the attachment rarist be returned into the circuit coiirt. Tooley v. Cul- bertson, 5 How. 267. It may also be made payable to the plaintiff in the distress. Peck v. Critchlpw, 7 How. 243 ; Phillips v. Chatiey, 7 How. 250. If made payable to the sheriff, the motion must be .made in the name of the sheriff or in that of his assignee, if he have assigned the bond, "or in that of his successor in office, if out of office ; the one in whom the legal right is, must make the motion. Lazarus v. Tri- ble, 1 S. & M. 575. 5. Whether the writ of replevin will lie in this state, in any case ex*'. cept case of distress for rent, in th^ absence of a statutory provision al- lowing it. Quare ? At all events, it will not lie except where there has been a tortious taking ; therefore, a writ of replevin will not lie upon an allegation, that the property was held by the party in possession against the consent of the person applying for the writ. . Wheelock V. Cozzens, 6 How. 279. 6. Where replevin issues on dis- tress for rent, no declaration is necessary ; the issue at court is made up on the writ. Parkhurst v. Dunlap, 6 How. 577. 7. In an action of replevin, un- der the statute of 1842, g. judgment in favor of the plaintiff'for so much money is erroneous ; it should be in the alternative, for the property, if to be had, if not, thexp-f^ its value ; and if for the pWint^,^and the defendant has eleei&A'io give bond and retain possession of the property, the judgment should be entered against both principal and surety in such bond. Anderson v. Tyson, 6 S. &: M. 244. 8. After judgment by default, \ upon due notice, on a three months' replevy bond for rent, a clear case of error must be made out to enti- tle the defendant to a reversal ; and the omission to recite in the bond to whom the rent is due, will not be a sufficient objection ; the obli- gor is estopped by the bond to de- ny that the rent is due ; and a pay- ment to the constable before assign- ment by him, or to his assignee after assignment, will be good ; and 1 a motion and judgment on such bond, by the assignee, will be a bar to all future action upon it. • Rolinson v. White, 7 S..&. M. 39. ^ 9. The proceeding by motion, on a replevin bond for ,rent, is a sum- , mary remedy, and the statute must i be strictly pursued ; the bond is the foundation of the judgment, and it must appear upon the record, that it was lodged in the office of the clerk of 'the circuit court, or the court has no power to award the execution ; and if the record shows, / that the bond was lost before it was ever lodged in the proper office, the court cannot take jurisdiction i of the case. Tifft v. Virden, 7 S. ■ & M. 91. RETRAXIT. 1. The special plea of retraxit RETRAXIT. — RIVERS. — ROADS. sn is,ft good plea, under the practice of this state ; and it is, therefore, error to strike such a plea out, or treat it as a nullity. Williaiks v. Northern Bank of Mississippi, 7 S. &M. 28. „v..J 2. It is, no doubt, the law, that a judgment upon Retraxit is as much a bar to another suit for the- same cause between the same par- ties, as a judgment after verdict ; it is the admission, by the plaintiff, on the record, that he has no cause of action which constitutes the bar, and operates as an estoppel. . Coff- man v. Brown,. 7. §. & M. 12S, :3. A plea that " a suit had been previously brought for the same cause of action between the same parties, in which the plaintiff, in his own proper person, came into coui-t, and confessed that he would not further prosecute his said suit against the said defendant, but from the same altogether withdrew him- self, whereupon it was considered by the court that the plaintiff should take nothing, and that the defend- ant go without day," does, not show a retraxit, and is bad on demurrer. a. RIVERS. 1. The act of congress estab- lishing the Mississippi river as the western boundary of the Mfesis- sippi territory, and adopting the common law for the government of that territory, thereby fixed the middle of that river as the true boundary line, and the rights of riparian owners thereon must be governed by the common law ; Jthat law gives the owners of the banks of rivers not navigable, what- ever the size of the river, exclusive proprietary rights to the middle of 32* the stream, subject only to the right of passage over it, as a highway, where the stream admits of it ; and, in the case of the Mississippi river, the acts of congress, and trea- ties, declaring it a common high- way, and forever free to the citi- zens of the United States, without ^ny'tax, duty, &c., do not alter thgu-- common law rule ; they give a right of 'easement over the river only, and the • owner of the bank may, therefore, recover of persons who use the bank of the river, wi^out, his - consent, the price which the owner has published he will charge for such use, if the terms be known to those using it. It may be questioned whether the exclusive proprietary right extends below low water mark ; and, also, whether the navigators of the river might not, in case of necessity, use the bank of the river, or fasten to the trees thereon. .Morgan v. Reading, 3 S. & M.^366. 2. A navigable river, in techni- cal language, only applies to rivers in which the tide ebbs and flows, and then only to such parts of the river as are subject to the flow of the tide. lb. rOads. 1. Where the statute required the intervention of a jury, eace> Hairston v. Francher, 1 S-/& id; 249. SALE.— S(5iHlE FACIAS. 379 SALE. ; L B. went to the house of S. to collect a bill of exchange ; S. agreed to pay it in cotton, which B. agreed to receive ; they went to the gin, and had seventy-three bales of cot- ton separated and removed from other bales ; the bales thus separa- ted were weighed and their value calculated, which was within a small sum of the amount of the bill. The overseer was directed by S. to have the cotton hauled to the river, (the plantation being on the river,) for B. ; but it did not appear that this transportation'" was any part of the contract ; the gin and all the cotton in it were burned the night after the contract ; held, the facts constituted a constructive if not ac- tual delivery of the cotton to B., and formed a good payment of the bill of exchange to the amount of the cotton. Stamps v. Bush,! How. 255. 2. Where there has been a con- structive delivery of property, and the same is destroyed before an ac- tual change of possession, the sub- sequent declarations of the parties will not change the legal effect of their contract, unless sufficient to amount to a discharge of the one previously entered into. lb. 3. See Personal Property, 3, 4, for conditional sale of. 4. A sale of a negro girl, coup- led with an agreement to return her to the lender, if the purchase-mo- ney be not paid by a given time, is a conditional sale. Mount v. Har- ris, 1 S. & M. 185. SCIRE FACIAS. ,. 1. See Judgment, 24 ; requisites of, to revive judgment. ■ 2, See Executor and Adminis- trator, tit Devastavit ; and Revival of suits against, as to how far, by scire facias, he may be made per- sonally-liable for a. devastavit: 3. See Executor and Adminis- trator, ib. as to scire facias to i;e- vive suit against intestate, before expiration of nine months from grant of letters ; and on what par- ties it must be served and how judg- ment rendered. 4. When a new person is to be benefited or charged by the execu- tion of a judgment, a scire facias is necessary to make him a party ; but where an execution is neither to be beneficial nor chargeable to one who is not a party to the judg- ment, a scire facias is unnecessa- ry ; thus, where it is sought to sub- ject the lands of a deceased party to a judgment against him, his heirs must be made parties by scire fa- cias ; but if the lands have been previously sold by order of the pro- bate court, and the interest of the heirs thus divested, the lands may be sold under the execution without a revival against the heirs ; but, in such case, the purchaser of the~ lands at the executor's sale, the terre tenant, must be made a party by scire facias. Smith v. Winston, 2 How. 601. 5. See Judgment, 39, 96, for ne- cessity of reviving judgment by scire facias. 6. Under the statute permitting 380 SEAL. — SET-OFF. revivals of judgpfients in any court of record by scpre facias, decrees in chancery are embraced. McCoy V. Nichols, 4 How. 31. 7. Where an execution has once issued on a judgment, it is not ne- cessary to revive such judgment by scire facias, as the law presumes the execution to be continued on the roll. lb. 8. See Variance, 5 ; for fatal va- riance between scire facias and re- cognizance. 9. A sheriff's sale of real estate under execution on a judgment against the intestate without revival against his heirs, is not void, but only voidable, and cannot be colla- terally attacked. Smilhv. Winston, 2 How. 601 ; Ih. in the case of sale of personalty without revival against the administrator. Drake v. Collins, 5 How. 253 ; so, also, if the execution issue after the lapse of a year and a day without revival. Mitchell V. Evans, 5 How. 548. 10. After a scire facias to revive a judgment has been sued out and payment plead to it, and verdict thereon, it is too late to object to errors in the original judgment. M'Afee v. Patterson, 2 S. & M. 593. 11. All the parties to the origin- al judgment must be parties to the scire facias to revive it ; and if the scire facias is discontinued as to any of the parties, it will operate a discontinuance as to all ; yet if those against whom it is not discon- tinued appear and plead, and a ver- dict is rendered thereon, the effect of the discontinuance as to the others will be cured, and the judg- ment on the verdict will bind the party. lb. 13. See Execution, 54; scire facias cannot issue against heir on adjudgment against executor. SEAL, AND SEALED IN- STRUMENTS. 1. A scroll, representing a seal, without words in the body of the instrument, showing the intention of the maker to make it a sealed one, will not make it such. Bohan- non V. Hough, Walk. 461; but otherwise with a writ of attachment; that is'a judicial writ, and a scroll at the end of the justice's name, with the word seal written in it, will be a sufficient sealing. Wright v. Steamboat Vesta, 5 How. 152. 2. A printed impression affixed to the name of the parties to a forthcoming bond, is a sufficient seal. Wa7izer v. Barker, 4 How. 363. 3. Sealed instruments are nego- tiable by statute, and entitled to days of grace. Skinner v. Collier, 4 How. 396. 4. To sealed instruments all par-' ties are principals, unless it appear on the face of the instrument that some are sureties, and they cannot, by plea, be allowed to change their character ; they are estopped by their seals ; if, therefore, any of the obligors be sureties who have been discharged by extension of time granted the principal, they can only make their defence in equity. Wil- 1 lis V. Ives, 1 S. & M. 307. SET-OFF. 1. See Executor and Adminis- trator, 17 ; as to power to set-off debt due by intestate, against debt due to administrator, where estate is insolvent. A set-off is in nature of a cross-action, and can be set up only where suit might be brought. Whitehead v. Cade, 1 How. 95. 2. See Bills of Exchange and SET-OFF. 381 Promissory Notes, 24 ; as to set- off, by holder, of note not indorsed. 3. See Justice of Peace, 7 ; as to power to allow set-off, greater than his jurisdiction. 4. Where A. sued B. for a medi- cal account, and B. plead set-off of slave of the value of $500 ; and on the trial, proved the sale of the slave to A., but omitted to prove its value ; held, that the jury ought to assess the average value of slaves, at the time, for its value ; and that it would be ground of new trial, wholly to omit giving any value to it. Lends v. Farrisli, 1 How. 547. 5. See Covenant, 1 ; how far pleadable in action of. 6. The statute of limitations will apply to set-off; not to payments. Barnes v. Lloyd, 1 How. 584. 7. Where a note is neither filed as an offset, nor set out in the plea of payment, it will be rejected, when offered, in evidence. Smith v. Winston, 2 How. 601. 8. See Bills of Exchange and Promissory Notes, 43. Offset of indorsement may be plead, where payee of note sues indorsee on a different contract. 9. A set-off, legally in the hands of the defendant, before action brought, is a good set-off to an ac- tion by an administrator. Carprew V. Canavan, 4 How. 370. 10. See Banks, 12 - 16 ; as to set-off of bank-stock and bank- notes. 11. Where the defendant pleads the set-off against the payee of the note, in an action brought by the payee, for the use of third party, against the maker, he^must show that he held the offset, previous to notice of the assignment ; and, in default of other evidence of assign- ment, the institution of the suit, for the benefit of a third party, will be regarded as notice. Northern Bank of Mississippi v. Kyle, 7 How. 360 ; Freeland v. Mann, 1 S. & M. 531. And no agreement or set-off made, or acquired after notice of the transfer of a note, will affect the right of the assignee. Emmons v. Myers, 7 How. 375 ; Lake v. Broion, 7 How. 661. 12. The acceptor of an inland bill of exchange, being surety for the payee on a different debt, was sued on his suretyship, and judg- ment rendered against him, and a levy made on his slaves, sufficient to satisfy the execution ; the ac- ceptor on being sued on the bill, by the assignee of the payee, plead the pendency of the levy which was made, previous to notice of the as- signment to him, as a set-off to the bill of exchange : Held, that it was a valid set-off ; the levy was a prima facie satisfaction of the judgment, and entitled the surety to an action against the principal, for the amount thereof ; and the surety would therefore be entitled to it, as a set-off; if the levy were legally discharged, without an actual satis- faction, the assignee should show that fact, in avoidance of the set- off. Kershaw v. The Merchants Bank of New York, 7 How. 386. 13. Courts of law and courts of equity follow a similar general doc- trine, on the subject of set-off; the statute is predicated on equitable principles, and should be liberally construed. lb. 14. A plea of set-off to the whole action, which offers to set-off a less amount than that sued for, is bad. Ih. 15. Where all the parties to a bill of exchange are sued under the statute, an offset, under the plea of general issue, with notice of the 382 SET-OFF. offset, may be proved, by the ac- ceptor of the bill, to have been held by him against the payee, who is also sued, previous to notice of the assignment. lb. 16. It seems, that if a bank make a general assignment of its effects, for the benefit of creditors, and the assignees sue one of its debtors, the notes of the bank will be a good offset. Commercial and Railroad Bank of Vicksburg v. AtMrton, 1 S. & M. 641. 17. Where exceptions are taken to the exclusion of evidence to prove a set-off, the bill of excep- tions must set out the items of the set-off, filed with the plea, other- wise the high court will not notice the objection. Rankin v. Butler, 2 S. & M. 473. 18. The words " set-off with- drawn," in a record, refer not to a plea of set-off, but to the account of set-off, filed with. the plea. lb. 19. See Bills of Exchange and Promissory Notes, 66. Where a note is payable to a bank, but never belonged to it, the notes of the bank are not offsets. 20. A special plea of set-off, to an action of assumpsit, is unknown to the common law and to our statutes, and is properly treated as a nullity, while the right of set-off exists, and may be made available, under the plea of payment. Hous- ton V. Smith, 2 S. & M. 597 ; Henry v. Hoover, 6 S. & M. 417. But if such a plea of set-off be pleaded, and issue be taken on it, and a verdict and judgment be ren- dered, the mispleading will be cured by the verdict, lb. If such a plea, though a nullity, be de- murred to, the demurrer must be disposed of, or it will be error ; however technically correct it may be, the demurrer to it must be sus- tained. Anderson v. Burke, 6 S. & M. 475 ; Bullard v. Dorsey, 7 S. & M. 9. 21. D., being indebted to the Union Bank of Mississippi, drew a bill of exchange on H., at Mobile, and the bank sent the bill to a bank in Mobile, for collection, where it was attached by a creditor of the Union Bank, and by a judicial pro- ceeding, in Alabama, sold to R. ; but, before the sale, D. became possessed of notes of the Union Bank, and tendered them to the bank, in payment of the bill, which refused them : Held, in a suit, by R. against D.,-that the notes were proper offsets ; and that the order of publication, in the at- tachment suit, in Alabama, to bring D. before the court there, was not notice to D. of the transfer of the bill. Riggs V. Dyche, 2 S. & M. 606. 22. See Bills of Exchange and Promissory Notes, 157. The ma- ker is not entitled to the benefit of set-offs had against the assignee, where the note has returned into the hands of the payee. 23. See Judgment, 111, 112; for set-off of judgment for costs against bank, or judgment of bank against the officers to whom the costs are due ; and whether an as- signee of the judgment cannot ob- ject to the set-off, at law ? 24. Where A. discounts a note for B., and takes it payable to C, and informs B. it is for C, B. will, when sued on the note, be entitled to any offset he may have against C, even though C. actually had no interest in the note. Slovall v. The Northern Bank, 5 S. & M. 17. 25. It seems, the debtor of a bank, when garnisheed, cannot make a set-off of notes of the bank, SET-OFF.— SHERIFF AND SHERIFF'S SALE. 383 acquired subsequent to the garnish- ment. King V. Elliott, 5 S. & M. 428. 26. Where no set-off is claimed by the pleadings, one cannot be al- lowed by the jury ; where, there- fore, G. sued H. P. for $1790, in assumpsit, and H. P. plead the general issue, and it was proved that Yi. P. admitted that he owed G. that sum ; it was also proved that H. P. executed his note for $600, to G., in part payment of it, and that, at that time, G. owed H. P. about $600 besides ; the jury found a verdict for G., to the amount of $637 : Held, that the verdict was erroneous ; it should have been for the sum due G., without allowing the set-off. Gib- son V. Powell, 5 S. & M. 712. 27. A set-off must be mutual ; that is between the same parties ; or, as expressed in our statute, the parties must be " dealing together," otherwise it cannot be allowed ; where, therefore, D. sued B. & M., on a note payable to E. or bearer, and the defendants proposed to prove that E. transferred the note .to W., and while W. was bearer of it, he was indebted to' M. in a large amount by note, and had promised that M. should be allowed to credit the note sued on, on the note held by him ; held, that the evidence was inadmissible ; the individual debt of W. could not be set-off against the joint debt of B. & M. Bullard v. Dorsey, 7 S. & M. 9. 28. Where the plaintiff sues upon a joint note, the defendants cannot set-off a debt due by the plaintiff to one of the defendants, in his own right. lb. 29. J. W., with G. as his surety, executed a note to the executrix of M. W. ; J. W. died, and F. G. W., his administrator, who was one of the distributees of the estate of M. W., directed the executrix to retain the note out of his distributive share, which was not done ; the ex- ecutrix sued G., the surety of J. W., on the note, and G. plead pay- ment : Held, that the debt being due by J. W., and the distributive share to his administrator, individu- ally, there was an absence of that mutuality, which is essential to the right of set-off ; that the executrix could not compel compliance with the direction of F. G. W., and it did not, therefore, amount to a pay- ment. Wadlington v. Gary, 7 S. & M. 522. 30. A., having purchased pro- perty, at an administrator's sale of the effects of B., cannot, when B.'s estate is insolvent, buy up the notes of B., to offset them against his debt to the administrator ; where, however, A. & B. have, respect- ively, mutual and subsisting de- mands against each other, and A. dies insolvent, B.'s debt against A., will be a valid set-off to A.'s debt against B., notwithstanding A.'s in- solvency. Cotton v. Parker, 1 S. & M. Ch. 191. 31. See Payment, 17. Set-off will be ordered against debt not se- cured, where the plaintiff has two debts, one secured and the other not. 32. See Consideration, 26. A claim growing out of breach of covenant, cannot be set-off against action on a note. SHERIFF, AND SHERIFF'S SALE. . 1. Where vendor retains pos- session of personal property, which the vendee has acquired title to by Sheriff's sale against vendor, such 384 SHERIFF, AND SHERIFF'S SALE. continued possession is not ipso facto fraudulent. Hoggatt v. Hunt, Walk. 216. . 2. The statute giving summary remedies against sheriffs must be strictly pursued, and does not take away other remedies. Connell v. Lewis, Walk. 251. 3. The penalties inflicted by the statute upon a sheriff for omitting to levy an execution or for failing to pay over money collected on an execution, cannot be recovered without notice to the sheriff of the motion against him. Vance v. Connell, Walk. 254. Coleman V. Saunders, 5 How. 287 ; no- tice must also be served on the sureties, where the motion is against the sheriff and his sureties ; even though the statute does not in so many words, require notice. De- moss V. Camp, 5 How. 516. 4. See Slaves 10 ; as to sale by sheriff of runaways and his liabil- ity for neglect. 5. See Real Estate 8 ; as to ti- tle of purchaser at sheriff's sale of land of vendee, who has only title bond. 6. If a sheriff fail to return an execution on the return day, he is liable on motion, to judgnlent for the amount of the execution, with 8 per cent, interest and five per cent, damages. Laws of Miss. 1828, p. 78; Helm v. Gridley, Walk. 511. 7. Sheriff should be permitted to amend his return, according to the facts. Garner v. Collins, Walk. 518. 8. Where a deputy sheriff has levied on a slave under attachment, he cannot legally leave the slave ' in the possession of an agent, for -safe keeping ; nor will such pos- * session of the agent be a defence to an action of trover for the slave by the defendant in the attachment ; the deputy sheriff has no power to appoint agents under him ; that power belongs to the sheriff. Welch V. Jamison, 1 How. 160. 9. The return of a sheriff on process, when general and legal, is evidence both for and against him, to the extent of the liability he in- curs under the return ; but where a sheriff makes a return of matters which admits the non performance of his duty and gives an excuse for it, the retiirn will not be evidence of the validity of the excuse ; as where a defendant was arrested upon ca. sa., the sheriff's return that the defendant was " released as to bail by the plaintiff," would not be evidence for the sheriff in a proceeding to make him liable on special bail, under the statute for not taking bail. Rowand v. Grid- ley, 1 How. 210. 10. Where a title derived at sheriff's sale is relied on, the judg- ment and execution must be shown, to sustain the title. Berry v. Hale, 1 How. 315; Starke v. Gildart, 4 How. 267. 11. In an action on a sheriff's bond, by a former sheriff against his successor in office, for fees col- lected ; the executions by which the money has been made are good evidence ; and the sheriff who lev- ied the execution cannot object to them for want of the fee bill of costs. Mclntyre v. Weathersby, 1 How. 331. 12. See Coroner, 1 ; return of coroner conclusive of his authority against him, though it do not ap- pear that the sheriff is dead. 13. Where land has been pur- chased at sheriff's sale, under a regular execution, and a deed given, the circuit court to which the ex- ecution was returnable, cannot, on SHERIFF, AND SHERIFF'S SALE. 385 motion, set the sale aside for fraud or other matter in pais ; the pro- ceeding would be in violation of the constitution, which declares that no man shall be deprived of his life, liberty or property, except by due course of law. The judgment, on the motion, setting the sale aside, would be absolutely void, whether the purchaser had notice of the motion or not. Flournoy v. Smith, 3 How. 62. 14. Quashing an execution can- not defeat a sale previously made under it ; nor can the sheriff be per- mitted to impeach his return on an execution, and to prove that at the time of the sale of land under it, the execution was fully satisfied; for a sale to a iona fide purchaser, even after satisfaction of an exe- cution, and not apparent of record, will be upheld. Van Campen v. Snyder, 3 How. 66. 15. See Judgment, 40 ; for duty of sheriff in serving process, to en- title to judgment by default. 16. See Attorney, 12 ; for mo- tion against sheriff by attorney in his own name. 17. In an action on a sheriff's bond, it is not necessary to aver that the chief justice of the coun- ty court had approved the sureties, and administered the oath ; and if it be, the failure to do so can only be taken advantage of by demur- rer ; the indorsement by the chief justice, to the effect required, is merely evidence that such steps have been taken. Carmichael v. The Governor, 3 How. 236. 18. In a suit on the sheriff's bond, for money collected, the de- claration should aver the collection, while he was sheriff, and under legal process. lb. 19. Ajudgment rendered against the sheriff, on motion, to pay over 33 money, is not evidence that the money has been collected, in an action against the sureties on the sheriff's bond, the breach of which assigned, was a failure to pay such money over. lb. 20. See Execution, 19 ; how far variance between execution and judgment, avoids sale. 21. See Execution, 20, 24, 25 ; an entry of satisfaction made by mistake, may be set aside ; a pay- ment in bank notes, not a satisfac- tion ; and a sheriff has no power of any kind over execution, after return term. 22. See Forthcoming Bond, 15 ; how far sheriff's return of taken and forfeited, will preclude inquiry as to whether it was signed in blank. 23. A sheriff's return on mesne process, cannot be amended after judgment and the lapse of the term at which it was rendered. Dorsey v. Peirce, 5 How. 173. Williams V. Oppelt, 1 S. & M. 559 ; aliter, on final process ; see Amendment, 8 ; Planters Bank v. Walker., 3 S. & M. 409. 24. See Scire Facias, 9 ; how far sheriff's sale without revival of the judgment by sci. fa., against the administrator, in case of per- sonalty, and heirs in case of realty, is void or voidable. 25. See Chancery, 146 ; how far low price, will be ground for set- ting aside a sheriff's sale, coupled with a mistake, as to the priority of a mortgage incumbrance. 26. In proceedings by motion against the sheriff and his sureties, notice must be given to the de- fendants in the motion. Coleman v. Saunders, 5 How. 287. 27. The statute authorizing sum- mary proceedings by motion against the sheriff and his sureties on his 386 SHEEIFF, AND SHERIFF'S SALE. bond, for official misconduct, is not a violation of the right of trial by- jury ; the motion is based upon the contempt of the officer in not com- plying with his duty ; but although the statute allowing the court to hear the motion without the inter- vention of jury, be constitutional, yet where the sheriff and his sure- ties demand the trial, it is usually granted them ; where, however, there was nothing in contest on such a motion, but whether there had been notice duly served, the trial by jury is properly refused ; the right of trial by jury in any case, may be waived either express- ly, or by implication ; and it will be a waiver by implication, where a party permits a trial to progress, without making the objection of the absence of a jury. Coleman y. Miss, and Ala. Railroad Co. 5 How. '419. Lewis v. Garrett, 5 How. 434. See Demoss v. Camp, 5 How. 516. Lewis v. Fellows, 6 How. 261. Anderson v. Carlisle, 7 How. 408. 28. Where a coroner served a notice on the sheriff and his sure- ties, and returned it served by him- self into court, if no statement ap- pear of record, that the coroner did not serve it, the court of er- rors and appeals will presume that the service by the coroner was pro- perly proved in the court below. 5 How. 419, 29. After the sheriff and his sureties have appeared and contest- ed a motion against them, on its merits, it is too late in the high court to object to want of notice, or the sufficiency of the motion. Izod v. Addison, 5 How. 432 ; Lewis V. Garrett, 5 How. 434. 30. Where a sheriff returns on an execution ' not levied ' merely, he will be liable to a motion on his bond to the plaintiff, in the execu- tion for the neglect. 5 How. 434. 31. In proceedings against the sheriff and his sureties, by motion on his bond, no other process or pleadings are requisite than ser- vice of a notice of the motion ; the motion need not set out the bond of the sheriff in full, it will be sufficient if it describe the bond and state the sureties therein, and describe the breach of the bond and failure of duty of the sheriff in the premises ; formal pleadings are not required. (See this case for the form of a motion and notice, which were sustained.) lb. ; and it will be sufficient notice, if it be directed to the sheriff as such, and to the sureties " as sureties on the official bond of said sheriff." Hamblin v. Foster, 4 S. & M. 139. 32. A sheriff's sale on execu- tion, where there is a previous levy on other personalty undisposed of, will pass title to an innocent purchaser ; the execution might have been quashed on account of the previous "subsisting levy, but if that is omitted, the sale will be good. Bibb v. Jones, 7 How. 397. 33; The plaintiff in execution, may move against the sheriff indi- vidually, without joining his sure- ties, to recover money collected by the sheriff on execution ; and in such case it will be no defence to the sheriff that he was instructed by the attorney of record not to pay the moriey over to the plaintiff. Dunn v. Newman, 7 How. 582; but a payment to the attorney will always discharge the sheriff, un- less positively prohibited from doing so ; and the client's telling the sheriff he did not want the at- torney to have the money, will not be a prohibition. Butler v. Jones, 7 How. 587. SHERIFF, AND SHERIFF'S SALE. 387 34. A sheriff who fails to return an execution on the return day, is, with his sureties, liable, absolutely and without exception, for the amount of the execution, with five per cent, damages, and eight per cent, interest, to be recovered by motion in the court to which the execution is returnable. Morehead V. Holliday, 1 S. & M. 625 ; and a plea in such case, that the plain- tiff had suffered no harm from the failure to return the execution, is no bar to the motion, lb. Nor that the sheriff had levied on prop- erty which he had afterwards sold. lb. If the term be twelve judicial days, and the sheriff return it on the seventh day, it is too late, and he is subject to the penalties of the stat- ute. Steen v. Briggs, 3 S. & M. 326 ; and the motion may be made against him at a subsequent term for his failure to return, lb. 35. A sheriff's return of satis- faction on an execution, cannot be set aside as false upon motion of the plaintiff without notice. Mann V. Nichols, 1 S. & M. 257. 36. It is error to permit a sheriff to amend his return on mesne pro- cess, after the return term, without notice to the adverse party. Wil- liams V. Oppelt, 1 S. 6e M. 559. 37. See Execution, 24 ; sheriff has no power to receive money on execution after return day has passed. 38. Where a sheriff returned that he had levied on two horses, the property of the defendant, and had levied them in the possession of H., from whose custody they had been taken ; it was held that the sheriff was liable, on motion, for the value of the horses, to be assessed by a jury ; if his return had shown the value, a jury would not have been necessary ; he would have been liable for that value. Collins v. Terrall, 2 S. & M. 383. 39. A sheriff will not be permit- ted to contradict his return by his testimony. Planners Bank v. Walker, 3 S. & M. 409. 40. Where a sheriff sells lands at sheriff's sale, and the purchaser forfeits the sale, and the sheriff re- advertises, and sells, and the same person is a purchaser at a less price, the sheriff cannot sue him for the difference between the bids, with- out shewing that he has been ren- dered liable, or suffered some dam- age thereby. Adams v. Griffin, 3 S. & M. 556. 41. It is competent to prove by parol, or by introducing the adver- tisements, that the sheriff who sold real estate, advertised the same ac- cording to law ; but it seems the recitals in the sheriff's deed are evidence of the advertisement. Cocke V. Lane, 3 S. & M. 763 ; they are prima facie evidence ; whether the presumption of their truth may be rebutted by proof of their falsi- ty, Qucere ? It seems, howe.ver, that even if the sheriff fail alto- gether to advertise, or advertise in a different mode from that pointed out in the statute, it will not vitiate the title of a bona fide purchaser at the sale. Minor v. City of Natchez, 4 S. & M. 602. 42. Where a sheriff levies on and sells land, he need not specify what kind of interest he sold ; it is to be understood that he sold the fee simple ; and if the defendant in execution had not such interest as was capable of being sold, that fact must be shown by the party who resists the validity of the sale ; prima facie the purchaser at sher- iff's sale gets the fee simple. 3 S. & M. 763. 43. An appearance by the sheriff 388 SHERIFF, AND SHERIFF'S SALE. and his sureties to a motion against the sheriff on his official bond and a defence by them thereto, admit the character in which they are sued ; if they desire to deny their liability as obligors in the bond, they must crave oyer and plead " non est factum.'''' Hamblin v. Foster, 4 S. & M. 139. 44. See Execution, 57 ; for duty of sheriff to make money out of the parties to a note in the order of their liability, and the construction of the statute of May, 1837, thereon. . 45. Irregularities of a sheriff in conducting a sale of real or personal estate under execution, will not vi- tiate the title of a bona fide pur- chaser at such sale. Minor v. City of Natchez, 4 S. & M. 602. 46. See Surety, 21. Surety may compel sheriff by petition to the circuit court to proceed against pro- perty of the principal ; and he need not make affidavit of his suretyship, if it appear by the execution. 47. Where a sheriff sold real es- tate under an execution, and insti- tuted suit to recover the price of it, his return on the execution was held to be a sufficient memorandum in writing to take the case out of the statute of frauds ; and whether made by himself or his deputy, is evidence of the sale and the amount bid, in an action by the sheriff to re- cover the price bid for it. Hand v. Grant, 5 S. & M. 508. 48. In an action by the sheriff against the purchaser of real estate at his sale, all the evidence the she- riff needs to support the action, is the return on the execution, proof of the sale, and a tender of the deed to the purchaser. lb. 49. Where a sheriff failed to make due return on an execution, and the plaintiff has by motion ob- tained judgment against him and his sureties, and has recovered the amount from him, he is entitled, under the statute, to sue out a new execution on the original judgment, and collect the money for his own use ; but the statute does not au- thorize the sureties of the sheriff, who have paid money for him, he being dead, on a judgment rendered against him and them for such fail- ure to return, to pursue the same course. Dillon v. Cook, 5 S. & M. 773. 50. See Ejectment, 25 ; copy of the judgment and execution only pEtrts of the record needed to up- hold the sheriff's deed. 51. A sheriff who has sold real estate by virtue of his office, is not bound to make a deed to the pur- chaser, until all the purchase-mo- ney is paid ; where, therefore, an execution against a bank for costs was levied on a piece of ground, and sold for more than the amount of the costs due, and the purchaser tendered the amount of the costs in gold and silver and the residue of the bid in the notes of the bank, and demanded a deed, held, that the sheriff had a right to demand gold and silver for the whole amount of his bid, and that the purchaser was therefore not entitled to a deed. Davis V. Pry or, 6 S. & M. 1 14. 52. Whether a mandamus is the appropriate remedy to compel a sheriff to make a deed to property which he has sold ? lb. 53. In an action against a sheriff by the publisher of a newspaper, to recover of him the cost of his adver- tisement of sheriff's sales ; the ad- vertisement of such sales, though signed by the deputy sheriff, will be evidence against the sheriff. Ter- rallv. McRae, 6 S. & M. 136. 54. Thereturnof a sheriff, made upon process, in discharge of duty SHEEIFF, AND SHERIFF'S SALE. 389 required by law, which shows a reason or excuse for an omission to perform the duty required by the writ, is not conclusive evidence in favor of the officer. On a motion against him, predicated on such omission, his return may be im- peached. Duckworth v. Millsaps, 7 S. & M. 308. 55. Where a fiat for an injunc- tion is granted, it is the duty of the clerk not to issue it until the bond required by the fiat is executed ; but if he do issue it, the service of it on a party is evidence to him that the preliminary bond has been duly executed ; in a motion, therefore, against a sheriif, for omitting to make due execution of a writ of Jieri facias, his return, that it was stayed by injunction, will be prima facie excuse, which will be made conclusive by the production of the injunction, whether an injunction bond were given or not. lb. 56. A levy upon personal pro- perty sufficient to satisfy the judg- ment, being, while the levy subsists, a satisfaction of it, a sale of other property than that embraced in the levy, by another execution on the same judgment while the first levy remains undisposed of, passes no title. Bingaman v. Hyatt, 1 S. & M. Ch. 437. 57. Upon an execution issuing upon a judgment, a levy was made and an illegal forthcoming bond was given, which was afterwards quashed ; another execution issued upon the original judgment, and property was sold under it ; held, that the purchaser acquired no title, the judgment being in law satisfied by the first levy. lb. 58. Whether, where a sheriff le- vies upon and sells more land than is necessary to satisfy the execu- tion, where the land is capable of 33* division, the sale is void, guare ? lb. 59. A sheriff's return, that he took a forthcoming bond, is not conclusive evidence- of the fact, but it may be impeached collaterally in a proceeding to which the sheriff is not a party. Patterson v. Denton, 1 S. & M. Ch. 592. 60. Where one of the defend- ants ^ in an execution on which only #12 of the plaintiff's money was due, ordered out an execution, di- rected it to be levied on two lots of land of his co-defendant in the exe- cution, valued at from $5000 to #10,000, and purchased the same himself for #10, at a sale under the execution ; held, that the sale was fraudulent, and that it should be set aside on the payment of the balance due on the execution. Reynolds v. Nye, Freem. Ch. 462. 61. Where a sheriff finds that property, which he exposes to sale, is about to be sacrificed, he should return that it was not sold for want of bidders, and wait for a vendi- tioni exponas. lb. SLANDER. 1. Where verdict in slander was rendered for one dollar damages, and costs, after act of the legisla- ture, which did not allow costs, where the damages did not ex- ceed ten dollars, held, that the act being passed subsequent to the com- mencement of the suit, did not ap- ply to this verdict, though rendered after the act. Gayden v. Bates, Walk. 209. 2. Words, merely abusive and insulting, are not actionable at com- mon law, unless special damages are averred, and proved ; they are actionable under our statute, and 390 SLAVES. the declaration should describe the offence as it is done in the statute. Davis V. Farrington, Walk. 304. 3. The words, " the plaintiff got drunk on Christmas," not actiona- ble. Warren v. Norman, Walk. 387. 4. See Statute of Limitations, 9. Words written, embraced therein. 5. In an action for slander, where not guilty and justification were both plead, and the latter plea with- drawn before the trial, it will be error to permit it to be read to the jury. Gilmore v. Borders, 2 How 824. 6. The plea of justification, when accompanied with the general is- sue, in an action of slander, cannot be given in evidence on the part of the plaintiff to prove that the words were spoken ; but when the words spoken are proved, the jury may take the special plea into consid- eration, in aggravation of damages, as indicative of malice. Doss v. Jones, 5 How. 158. 7. In an action, under the stat- ute, which gives an action for words spoken, which were " in common acceptation considered as insults, and lead to violence and breach of the peace," it is necessary that the declaration should bring the case within the statute, and these words are held sufficient to do so : " con- trary to the statute, with a view to insult the plaintiff, and to lead him to commit violence and a breach of the peace ;" and such words, to be actionable, need not be spoken to, or in the presence of the plaintiff. Scott V. Peebles, 2 S. & M. 546. 8. Whether it is a good plea to an action of slander, by P. against S., that the slanderous words were previously spoken by A., and by B., and that S., without malice, only repeated what A. and B. had said, sind gave them as his authors, quare ? Yet such plea would be bad if it aver 4hat A. and B. were citizens of a different state, and not immediately suable by P. lb. 9. In an action of slander, where justification is plead, the plaintiff has a right to introduce witnesses to establish his good character, in aggravation of damages, though it be not impeached by the other side ; whether or not a different rule would prevail, where the general issue is the only plea filed, quare ? lb. 10. A general charge of stealing, unaccompanied with any explana- tion, is actionable, because it im- ports a felony ; but if, from the application of the charge, a felony could not have been meant, it will not support a verdict ; where, there- fore, a person was charged with having stolen a " bee tree," it was held, not actionable ; as that phrase has reference to the wild, unre- claimed insect, and a standing tree, neither of which is a subject of larceny. Cock v. Weatherby, 5 S. ds M. 333. 11. Slanderous words, spoken in the second person, will not support counts for words spoken in the third person, and vice versa. lb. 12. Where a declaration in slan- der, contained five counts, a gen- eral verdict, assessing tfee plaintiff's damages at a certain sum, is not responsive to any one count in the declaration. lb. SLAVES. 1. Slavery is condemned by reason, and the laws of nature ; and if the construction of a consti- tution involved the question of slavery or not, and that construe- SLAVES. 391 tion were doubtful in itself, the courts would lean " in favorem vita et liiertatis." Harry v. Decker, Walk. 36. 2. The treaty of cession by Vir- ginia to the United States, which guarantees to the inhabitants of the Northwest territory, their ti- tles, rights and liberties, does not render void that article of the or- dinance of congress, of 1787, which prohibits slavery in that territory. lb. 3. Any state may by its consti- tution prohibit slavery within its limits, and so may the legislature of any state, when not restrained by the constitution. Slaves within the limits of the Nortwestern ter- ritory, became freemen by virtue of the ordinance of congress, of 1787, and can assert their claim to freedom, in the courts of this state. lb. 4. Slaves, taken from Virginia in 1784, to Vincennes, Indiana, and remaining there until July, 1816, and then removed to this state, are, under the ordinance of congress of 1787, and the con- stitution of Indiana of June, 1816, freemen, and may assert their free- dom in this state. lb. 5. Murder may be committed in killing a slave ; who, though in some respects property, in others fSte men, and the laws of Rome, giving power over their lives, were never in force here. State v. Jones, Walk. 83. 6. See Trover, 3, 4 ; as to cri- terion of damages in trover for ; and, also, as to action on warranty of soundness, where vendee be- fore action has sold the slave, and no recovery had against him. Texada v. Camp, Walk. 150. 7. A refusal by a person, with- out color of title, to restore slaves upon the demand of the true owner, is such a fraud as brings the case within the provisions of the Habeas Corpus act ; which provides that if any slave shall be seduced out of its owner's possession by force, stratagem or fraud, and unlaw- fully detained ; the owner may sue out a habeas corpus. Scudder V. Seals, Walk. 154. 8. See Trespass, 2. As to what form of action, and who to main- tain it, for injury done to slave, while hired out. McFarland v. Smith, Walk. 172. 9. An indictment for stealing " negro man," insuiRcient, and an acquittal under it, no bar to indict- ment for stealing ." negro man slave." State v. McGraw, Walk. 208. 10. The provisions in the statute for the sale of runaway slaves, are merely directory, and a non-com- pliance with them does not in- validate the sale ; if the sheriff neglect his duty, by which the slave sells for less money, the sheriff will be liable in damages. Hutchinsv. Lee, Walk. 293. 11. Jurisdiction of equity over bill for recovery of slaves. See Chancery, 24. ' 12. See Mortgage, 4, 5 ; as to liability of mortgagor for hire ; and the ownership of the issue of mort- gaged slaves. 13. Where the law established a court to consist of the judges of probate and their associates for the trial of slaves, both of the associates must be present. Arnett v. Bitsel, Walk. 496. . 14. See Circuit Court, 1 ; for jurisdiction to try slaves, 15. See Evidence. 52 ; where there is no proof of value of slaves, right of jury to assess it. 16. B. left this state for Ohio, 392 SLAVES. and took with him a slave woman, and her son, for the purpose of emancipating them, and with the intention to bring them back ; having done which, he returned with the slave to this state, and resided here until his death ; in his will, made after the deed of emancipation, he recited the deed, his intention to ratify it, and de- vised his property to the emanci- pated son of the woman, whom he also stated in his will to be his own son ; held, that the deed of eman- cipation was void, being a contract made in Ohio, in violation and fraud of the laws of Mississippi, and calcu- lated to injure the state and its citi- zens, and set an example pernicious and detestable ; since no owner can emancipate his slave, except by proper deed or will, and proof of meritorious services, to the legisla- ture, which must ratify the emanci- pation. Hinds v. Brazealle, 2 How. 837. 17. A slave cannot take property by devise, nor can it be held in trust for him. lb. 18. It seems a will, manumitting slaves, to be taken to Ohio or In- diana, is void. Vick v. McBaniel, 3 How. 337. 19. That provision of the con- stitution of Mississippi, which de- clares that " the introduction of slaves into this state as merchan- dise, or for sale, shall be prohibited from, and after the frst day of May, 1833," is not merely man- datory to the legislature to make such prohibition ; but is an abso- lute prohibition in itself; and all contracts for slaves, so introduced into the state, after the prohibited time, are absolutely void ; but if the maker of a note, given for slaves so introduced, fail to make his defence thereto, when sued at law, he cannot afterwards be heard to make it in a court of equity. Green v. Robinson, 5 How. 80 ; Thomas v. Phillips, 4 S. & M. 358 ; Glidewell v. Hite, 5 How. 1 10 ; such contract is absolutely void as against public policy, and the prohibition in the constitution. Cowen V. Boyce, 5 How. 769 ; Brien v. Williamson, 7 How. 14. This last case was decided after the case of Groves v. Slaughter, 15 Peters, 449, affirming a con- trary doctrine, was decided. Chief ■Justice Sharkey reviews that case in what chancellor Kent, ( 1 Kent's Commentaries, edit, of 1844, p. 439,) terms a masterly opinion ; , but if an actual settler in this state, , bring negroes from other states into it, with the bona fide intention to apply them to his own use, and afterwards change his intention and sell the negroes, such sale does not amount to a violation of the constitutional prohibition against the introduction of negroes for sale or merchandise'; and where the» actual settler has introduced ne- j groes into the state and sold them, the act of sale is not conclusive evidence of the intention of the introducer ; that is to be judged of from all the circumstances ; where, therefore, H. filed his bill in chan- cery, averring that in the year 1836, he bought of E., a tract of land and negroes, at a stipulated price, and by an entire contract, though the land was valued at a fixed price, and the negroes in the mass at a fixed price ; that he had paid part of the purchase - money, and that E. had intro- duced five of the negroes thus sold, into this state for sale, in violation of law ; and, prayed for a rescis- sion of the contract, &c., E. an- swered, denying the introduction SLAVES. 393 of the slaves for sale, but averring that they were for his own use, and he had afterwards changed his intention and sold them, and it was in proof that E. was a planter, and had never sold slaves as a busi- ness, and had made efforts to re- scind his own purchase of the land and slaves he sold, not including the five he had introduced, before he made the sale, and that these five were never offered for sale, except in connection with the plantation and negroes ; held, that though E. had spoken, before he bought the five slaves, of buying other slaves to add to the place, to enable him to sell the whole to- gether ; yet the facts did not con- stitute a violation of the constitu- tional prohibition. Hope v. Evans, 4 S. & M. 321 ; nor can an ac- tion be sustained by the vendee against the vendor' of negroes, in- troduced into this state as mer- chandise, since May, 1833, for a breach of the vendor's warranty of the soundness of such negroes ; the contract of sale and the warranty of soundness being void. Collins V. McCargo. 6 S. & M. 128. M. introduced negroes into this state as merchandise, since May, 1833, and sold them to C, who gave a bill of exchange in payment, which not being paid, a compromise was made, by which C. lifted the bill, and gave his note- instead ; after- wards another compromise was made, by which C. was to give up to M. the negroes then living, and execute a bond with surety, for a fixed sum ; which compro- mise was carried out ; held, in an action on the bond thus given by C, and his surety, that these re- newals and compromises did not change the character of the con- tract between the parties ; all the subsequent contracts and agree- ments depending on the original illegal consideration were void, and no recovery would be had on the bond. Collins v. McCargo, 6 S. & M. 128. In 1837, D. M., a citizen of North Carolina, placed in the possession of W., about to move to the state of Mississippi, a negro man, to be sold or hired by him. W. brought the slave to this state, and sold him here, to M. on a credit, and took M.'s note, and transferred it to his father in payment of a debt due by him to his father ; the note was after- wards paid, and D. M. sued W. and his father in equity, to recover the money, charging them with a fraudulent combination to cheat him out of it ; held, that the com- plainant was not entitled to re- cover ; the introduction of the sla-ve wa^ in violation of the law and constitution ; and any contract growing out of, or connected with such violation, will not be en- forced. Wooten V. Miller, 7 S. & M. 380. 20. See Will, 19 - 23, 31 - 44 ; how far slaves may be manumitted by will ; or ordered to be sent to Liberia ; or held in trust till legis- lature manumits. 21. It is not the policy of Mis- sissippi to augment her slave popu- lation. Ross v. Vertner, 5 How. 305. 22. In prosecutions for criminal offences, slaves are to be treated as persons ; their masters are there- fore competent witnesses for them when accused. Isham v. The State, 6 How. 35. 23. See Evidence, 123 ; for mode in which identity of slaves may be established. 24. From the peculiar character of slave property, it seems a bill in 394 SLAVES. chancery will lie to recover them in specie. Murphy v. Clark, 1 S. & M. 221. 25. Slaves are distributed ac- cording to the law of the domicil of the decedent, and widows en- dowed thereof by the same law. Garland v. Eowan, 2 S. & M. 617. 26. If a hired negro should be so treated by the hirer as to cause the slave to abscond, or any other loss to the owner, the hirer would be liable, but if he uses such cau- tion as a prudent man would with his own slave, he is not liable. And if a hired slave run away, and the hirer use proper efforts to recover him, and inform his owner of the facts, he will not be liable. Young V. Thompson, 3 S. & M. 129. 27. A writ of habeas corpus, to recover the possession of a slave, cannot be maintained, if the party against whom the writ issues, had, in good faith, parted with the pos- session of the slave, previous to its issuance or service. Hardy v. Smith, 3 S. & M. 316. 28. The affidavits made to ob- tain the writ are not evidence at the hearing. lb. 29. The act confiding the trial of slaves for stealing money or goods, &c., in order to fix the lia- bility of the master for the value of the property stolen, to justices of the peace, is not unconstitu- tional, and the master will be liable for the property stolen, whether it is in the slave's possession or not, and whether the larceny be grand or petit. Dowell v. Boyd, 3 S. & M. 592. 30. If the property stolen be money, an action of debt is the remedy for its recovery from the master ; aliler if bank notes ; and if the declaration be in debt, and one count charge bank notes, and the other money to have been stolen, the latter count will be good, and a general demurrer to the whole declaration cannot be sustained. lb. 31. See Criminal, 112; runa- way slaves may be subjects of lar- ceny. 32. The writ of habeas corpus allowed by statute for the recovery of the possession of slaves, when taken or seduced out of the pos- session of the master, overseer or owner, by force, stratagem or fraud, and unlawfully detained in the possession of another, applies only in cases where the circum- stances which warrant the writ have occurred within the jurisdic- tion of our own state ; where, therefore, slaves are taken by fraud out of the owner's possession in Tennessee, and brought into this state, and detained from the owner, he is not entitled to this writ. Na- tions V. Alvis, 5 S. & M. 338. 33. Negroes are, prim,a facie, property and slaves ; and if it be attempted to assert their exemption from servitude, the mode pointed out by the statute (H. & H. 166) must be strictly pursued ; and is the only mode in which freedom can be asserted in this state. Thornton v. Demoss, 5 S. & M. 609. 34. In a suit against a sheriff to recover of him the value of a ne- gro whom the sherifi" had sold, un- der an execution, and who, it was alleged, was free ; the record of a proceeding, by habeas corpus, of a circuit judge, in which the negro was adjudged to be a freeman, is not admissible in testimony, even though the sheriff had notice of the proceeding, for the reason that the circuit judge had no jurisdiction of the habeas corpus, lb. SLAVES. 395 35. It is the policy of our state to prevent free persons of color from remaining in it ; nor does that policy conflict with the constitntion of the United States, which declares " that the citizens of each state shall be entitled to all privileges and immu- nities of citizens in the several states," as no person of color can become a citizen, in the sense of the term used in the constitution. Leech v. Cooley, 6 S. & M. 93. 36. Where a slave has been prosecuted before a justice of the peace" for larcenj"-, under the stat- ute, (H. & H. 164, § 40,) and the justice has adjudged the costs of the prosecution against the owner of tiie slave, the circuit court has jurisdiction of a certiorari, at the instance of the owner, to determine whether, so far as the judgment for costs extended, the decision of the justice had been according to the law and the facts. Atchison v. PoUer, 6 S. & M. 120. 37. The statute which subjects the master, employer or overseer of a slave convicted of larceny, to the costs of prosecution, designed to render the person, who had the slave in charge at the time of the oifence, liable for the costs, whether he were master, employer or over- seer ; and a judgment for costs, therefore, against a master who had not the slave in his employ, at the time of the offence, would be erroneous, lb. 38. See Distribution, 7 ; a ne- gro made free by act of the legis- lature, and allowed by act the right of the state in his father's estate, from escheat, may obtain distribu- tion therein by petition to the pro- bate court. 39. The rule that makes a mas- ter liable for the act of his slave, is limited to cases in the way of trade, or public employment, or where the injury is inflicted by the slave in pursuance of his master's directions ; and not for proceedings of the slave unauthorized by the master ; a master, therefore, is not liable, in a civil action, to another, for the felonious killing of the lat- ter's slave, by the former's, unless the former had criminal knowledge or agency in the transaction ; which knowledge or agency may be gathered from the circumstances attending the occurrence. Leggett v. Simmons, 7 S. & M. 348. 40. S.'s slave being on L.'s plan- tation, L. gave him and one of his own slaves a dram of spirits ; that night L. was roused from his sleep by a clamor among his slaves, which proceeded from the two to whom the spirits had been given ; as L. approached them, armed with a gun, S.'s slave rushed upon him, on which he discharged his gun ; after which, L. took no steps to drive S.'s slave away, but permitted him to remain upon his premises ; L., in a short time, was again aroused by a similar clamor, and approaching the spot he beheld the two slaves in a struggle together, and then S.'s slave pursuing and threatening the life of the other; the difficulty seeming to cease, L. retired to the house, and the next morning S.'s slave was found dead where the last quarrel took place ; held, that L. was not liable to S., in a civil suit, for the value of the slave killed, lb, 41. See Will, 31—44; for ju- risdiction of equity to force execu- tors of a will, directing slaves to be sent to Liberia, to carry out the provisions of the will ; and also for the power to make such will, and its proper construction ; and how far the fraud of an executor, in 396 SLAVES. preventing slaves being removed to Liberia, will take the case out of the statute of 1842, requiring slaves so situated to be ^removed in a given time. 42. Upon a bill filed to enjoin a sale of land and negroes, under a deed of trust, on the ground that the debt secured was contracted for negroes introduced into this state as merchandise, in -violation of the constitution, and to have the deed of trust declared void ; held, that the injunction must be dis- solved, because the complainant did not offer to surrender back the slaves to the owner. The sale be- ing void, the title remained in the vendor ; and a court of equity, in declaring the contract void, at the instance of the vendee, would compel him to restore the slaves to the vendor. Martin v. Broadtis, Freem. Ch. 35. 43. Although, as a general rule, where personal property of a third person is seized, under execution, he is left to his remedy at law, yet, where his slaves are levied on, a court of chancery will interpose and grant an injunction, on account of the peculiar nature of that property. Sevier v. Ross, Freem. Ch. 519. 44. E. & H. introduced negroes into this state,' since the first of May, 1833, as merchandise and for sale, and sold them to H. G. B,., and took in payment for them the notes of A., payable to H. G. R., and by him indorsed, secured by mortgage on a tract of land, by A. ; held, upon this state of facts, that R. & H. were entitled to foreclose the mortgage given by A., and assigned in payment of the illegal consideration, by H. G. E. to E. & H. Roioan v. Adams, 1 S. »fe M. Ch. 45. 45. A vendee, having purchased negroes introduced into this state, in violation of the constitution, cannot, in a court of equity, escape the payment of the pur- chase-money without offering to surrender back the slaves, and ac- count for their hire. lb. 46. Where the bill charged upon the defendant the introduction of negroes into this ^tate for sale, which was positively denied by the answer, and proof in corroboration of the answer taken ; held, that proof of mere admissions of the party defendant that he had- so in- troduced the negroes, would not alone be sufficient to overthrow the positive denials of the answer, and the corroborative proof. Hope v. Evans, 1 S. & M. Ch. 195. 47. E. sold H. a tract of land and negroes, some of the latter of which had been brought into this state in violation of law for sale ; H. made partial payments, and filed his bill to rescind the contract of sale, which, he averred, was an entire one, on account of illegality ; held, that H. was entitled to no re- lief; that the court could not decree a repayment of the money already paid, it having been voluntarily paid on an illegal contract, and could not decree a partial rescission of the contract. lb. SPANISH LAWS AND CLAIMS. 1. During the existence of the Spanish government in the Missis- sippi Territory, the laws of Spain controlled the transfer and descent of property ; and those laws con- tinued in force here till the organi- zation of the territorial government, under the act of congress of April 7, 1798, which was effected in the STATUTES, CONSTRUCTION OF. 397 beginning of the year 1799. Cheie V. Calvert, W alk. 54. 2. Under the law of Spain, ex- ecutors had no power to sell the immovable property of the testator. lb. 3. Grants of land here, by Spain, were donative, and not subject to the rights of community between husband and wife ; the conditions contained in them were rarely ful- filled, and were for the benefit of the donee, lb. 4. A Spanish order of survey signed by a deputy governor is presumed, yrma/acie, to be issued by the competent authority, and, in the absence of proof to the contra- ry, , will be regarded in the same light as if signed by the governor in chief ; and such order of survey vests such a right as could only be defeated by the alienation of the grantee, or his voluntary abandon- ment, or by an entire failure to perform the conditions, or some act against the government, which would justify a confiscation. Winn V. Cole, Walk. 119. 5. The report of the surveyor of the Spanish government, stating the land to be vacant, and the allega- tion of that fact in a Spanish grant does not amount to a revocation of a prior grant of the same land, or a confiscation ; a revocation of a grant, the effect of capricious ty- ranny, ought not to be regarded. lb. 6. But little importance was at- tached by the Spanish government to the conditions set forth in their grants ; and the performance of such conditions, are either admit- ted, or dispensed with, by a con- firmation of the grant by act of congress, lb. 7. A patent, having relation to the origin of the title, is admissible 34 in evidence, though it emanated after the demise laid in the declara- tion, or after the death of the pa- tentee ; a Spanish grant, confirmed by the United States is a legal title, without the patent. lb. 8. Congress cannot impair the vested rights of individuals, much less can their subordinate oflScers ; it is the duty of the land-office de- partment to advance and perfect the rights of claimants of land, and not to obstruct, or vacate them ; and the proceedings of the board of commissioners is not conclusive against individuals, lb. 9. See Land Laws, ^c. 12-14; how far Spain had jurisdiction above the thirty-first degree of north latitude, and the effect of her grants. STATUTES, CONSTRUCTION OF. 1. Where a statute was passed, and, at the same session of the legis- lature, an amendment, in the shape of a supplemental act, was made thereto, and it was provided by the amendment that the supplemental act should go into operation forth-- with ; the whole act would take effect from the period of the pas- sage of the supplement ; notwith- standing the proviso in the constitu- tion that, unless it was otherwise provided, no law should take effect until sixty days after its passage. West Feliciana Railroad Co. v. Johnson, 5 How. 273. 2. In the construction of statutes, the intention of the legislature is the cardinal rule ; and where, in a subsequent statute, there is no ex- press repeal of a former one, the former statute will not be consid- 398 SUPERSEDEAS.— SUPREME COURT. — SURETY. ered as repealed by implication, unless the repugnancy between the new provision and the £oTmer one, be a plain and unavoidable one. Planters Bank v. The State, 6 S. & M. 628. See Banks, Sfc. 628. SUPERSEDEAS. 1. A supersedeas to a judgment against sfeveral persons, granted at the prayer of one, ought not to issue in behalf of all the defend- ants to the judgment, unless they all join in the bond ; and a super- sedeas thus issuing, will be quashed. Jones V. The Mississippi and Ala- bama Railroad Co. 5 How. 407. 2. See Execution, 56, as to whether a supersedeas is an amo- tion of a levy. SUPREME COURT. 1. See Jurisdiction, 2, 3, as to jurisdiction of causes transferred from inferior court before final judgment ; such transfer held to be constitutional. Blanchard v. Buck- holt, m&\k. 64. 2. See Jurisdiction, 8, as to ap- peal from interlocutory decree. 3. Supreme court may grant mandamus. Ex parte Robson, Walk. 412. SURETY. 1. As to how far, in a court of law, surety can set up defence of injury by failure to sue the princi- pal, see Bills of Exchange and Promissory Notes, 7 ; Kerr v. Ba- ker, Walk. 140. 2. A plea by a surety, of exten- sion of time given by the creditor to his principal, is bad, if it do not state that it was given without the assent of the surety. Greeny. Bran- don, Walk. 372. 3. A surety on a tax-collector's bond is not discharged by a law giving the tax-collector time to make his returns in, on his exe- cuting a new bond with a fixed penalty, if he fail to give such bond. lb. 4. On motion for judgment, un- der the statute, by a surety against his principal, the judgment against the surety, and the fact that the plaintiif is a mere surety, should appear on the record. Brown v. Oldham, Walk. 493. 5. The statute giving the su|ety the right of moving for a judgment, for money paid by him as [surety, against the principal, confers an exclusive privilege and violates the constitution in that particular ; and the statute, not making provision for the ascertainment, by a jury, of the facts of suretyship and the payment of the money, violates the constitution, which secures the right of trial by jury to everyone. Smith V. Smith, 1 How. 102. Sed vide Woodward v. May, 4 How. 389 ; where the statute is held constitu- tional, especially if the defendant in the motion submit to trial by WY- 6. See Bills of Exchange and Promissory Notes, 23 ; as to right of surety, who becomes assignee of the note, to sue on it in his own name. 7. The surety has a right to every remedy, which the creditor has against the principal debtor, to enforce every security ; to stand in the place of the creditor ; where, therefore, an administrator of an estate has given his note with sure- ty, in payment of a debt of his SURETY. 399 intestate, and such surety has after- wards to pay it, he can subject the property of the intestate, in the hands of his distributees, to the payment of the debt thus paid by him. Goioing v. Bland, 2 How. 813. 8. See Limitations, Statute of, 14 ; for right of surety to make defence of the bar of statute against his principal, and as to whether a failure to present to the administra- tor of the principal, discharges the surety. 9. See Sheriff, . 19 ; judgment against sheriff, how far evidence against his sureties. 10. There must be a positive and binding agreement to indulge the principal for a definite time, i i based upon a valuable considera- ' ' tion, sufficient to tie up and re- strain the creditor during the time for which the indulgence is given, or it will not be a fraud upon the rights of the surety, nor discharge him from liability. Payne v. Com- mercial Bank of Natchez, 6 S. & M. 24 ; where, therefore, the plain- tiff in execution on a forthcoming bond, directed the sheriff to hold up the execution until further orders from him, as the principal in the bond had agreed to deliver cotton in payment of it, and the execution was accordingly held up ; it was held, the surety on the bond was not thereby discharged, even though the principal debtor had ample pro- perty at the time to pay the execu- tion. Newell v. Hamer, 4 How. 684. Agreement to receive collateral se- curity, and apply the proceeds to the payment of the debt, will not discharge the sureties, there being no agreement not to sue on the original debt. Wade \. Staunton, 5 How. 631. So, where the principal urges the holder not to sue, and pro- mising that if he does not, he will pay the debt in a given lime, and the holder does not sue, the surety will not be thereby discharged ; nor will the mere voluntary pro- mise to forbear, on a renewed as- surance that the party will pay that which he is already bound to pay, where there is no other new con- sideration, discharge the surety. Montgomery v. Dillingham, 3 S. & M. 647. If the holder merely re- main passive his rights are not im- paired, but if he tie his hands for a single day, so that on that day he could not sue, the surety is released. Johnson v. Planters Bank, 4 S. & M. 165 ; where, therefore, the hold- er of a bill, at its maturity, received ten per cent, of its amount from the acceptor, and agreed to wait until the drawer of the bill could be heard from, though no definite time of payment was agreed on for the balance, the indorser was discharged. Rupert v. Grant, 6 S, & M. 433 ; the agreement for de- lay, which will discharge the surety, must be founded upon a sufficient consideration, and be such as can be enforced in a court of justice ; indulgence, therefore, granted to the principal in a note, without the consent of the surety, upon the promise of the principal to pay the note out of the proceeds of a par- ticular judgment ; or, if that failed, then out of a particular note, will not release the surety, the creditor having no means of enforcing either promise. Wadlington v. Gary, 7 S. & M. 522. 11. The surety on a forthcoming bond, after forfeiture, is still but a surety. Newell v. Hamer, 4 How. 684. 12. Where a surety on a forth- coming bond supposes himself dis- charged by indulgence to the prin- 400 SURETY. cipal, his remedy is not by motion to quash an execution on the bond against him. lb. 13. Whethersurety is discharged by failure of holder of note to sue principal, on being notified by sure- ty to do so, when the principal in the interval becomes insolvent } Qucere ? Bullitt v. Thatcher, 5 How. 689. 14. See Execution, 34 ; what surety must do to force creditor to levy on property of principal. 15. Where property of the prin- cipal is levied on, the surety can- not move to quash the execution. Kerningham v. Scanland, 6 How. 540. 16. Mere delay to levy an exe- cution on a forthcoming bond on the property of the principal, will not discharge the surety ; nor will the failure of the plaintiff in execution, when he has levied on personal property of the principal, and a third party has given bond to try the right of property, to tender an issue as to the right to such third party, discharge the surety. Mel- ton V. Howard, 7 How. 103. 17. See Seal, SfC. 4 ; parties to sealed instruments are estopped by their seals to deny that they are principals ; their remedy is in equity. 18. It is error to quash a forth- coming bond as to principal, and leave it in force as to surety. Conn V. Pender, 1 S. & M. 386. 19. See Appeal, 19 ; sureties on appeal bond for jury trial, in jus- tice's court, are parties to the suit. 20. The admission of the prin- cipal is evidence against the surety. Montgomery v. Dillingham, 3 S. & M. 647. 21. Where the statute requires the sheriff to levy execution in his hands upon the property of the principal before that of the surety, and the sheriff, upon application of the surety, refuse to do so, but levies on that of the surety, held, that the surety might, upon proper petition to the circuit court, obtain a supersedeas to the levy, and com-i pel the sheriff to levy on the pro- perty of the principal ; that it was not a matter within the discretion of the sheriff, but that the circuit court should, on such petition, ex- amine into the facts, and compel the sheriff to proceed accordingly; and if it appear, on the face of the execution in the sheriff's hands, that the party is surety, he need not make affidavit of that fact to com- pel the sheriff to proceed against the property of the principal. Moss V. The Agricultural Bank, 4 S. & M. 726. 22. See Evidence, 227 ; surety, who is incompetent witness, may be made competent by substitution of other surety in his stead. 23. See Executor and Adminis- trator, 173 ; surety, in order to save bar for non- presentation ^to commissioners of insolvency, must have the claim presented ; for if he pay it after the commission is closed, it will not be opened for him. 24. L. being indebted to the Commercial Bank in various notes, upon which he was liable either as indorser or maker, and on which other persons were sureties for him, to reduce his liability to a single amount, proposed to the cashier of the bank to execute his individual note for the sum total due the bank, and confess a judgment in Louis- iana on the note thus made, which judgment should bind all his pro- perty, and be in discharge of the notes on which he was liable ; the cashier, on consultation with sever- al of the directors, agreed to the SURETY. 401 arrangement to be consummated when L. had, at his own expense, carried the arrangement into effect, and exhibited to the banlc satis- factory evidence of it ; L., after this agreement, and before he con- fessed the judgment, sold all of his property in Louisiana, which the judgment was to bind, to B., and then executed his note for the sum total payable to the bank, and con- fessed the judgment as agreed up- on ; held, that the agreement of the bank being purely conditional, and that condition not being complied with by L., the bank might disre- gard the arrangement with L. and sue upon the original notes against all the parties to them, and that the sureties were not released. Payne Vj Commercial Bank of Natchez, 6 S. & M. 24. 25. Where E. sold a tract of land to P., representing that the title was unincumbered, though at the time it was largely incumbered, and P. gave a note to E. for the purchase-money with W. as his surety, and the assignee of E. sued P. and W. at law upon the note, and obtained judgment, and W. filed a bill in chancery to enjoin the judgment at law on the ground of the fraud committed by E. on P. in the sale of the property, and did not make P. a party to the bill, and P. did not complain of the judg- ment at law ; held, that W. was not entitled to be relieved therefrom ; whether a surety can ever avail himself of a defect in the contract of his principal, Qudre ? Walker V. Giliert, 7 S. & M. 456. 26. The obligation of the con- tract of a surety arises from the consideration received by his prin- cipal, and if the principal be bound , the surety is also, unless there has been some variation in the terms 34* of the contract ; where, therefore, a principal had, by promises to an assignee, induced him to purchase his and his surety's note, and there- by precluded himself from setting up a failure of consideration of the note as to the payee ; held, that the surety was likewise precluded from making the defence. Billing- ham V. Jenkins, 7 S. & M. 479. 27. Where one surety on a note pays it, and files a bill against a co-surety for contribution, the de- fendant may prove, by parol evi- dence, the engagement actually undertaken by him when he signed the note ; where, therefore, B. made a note with H. and others as sureties thereon to a bank, and when it became due B. wished to renew it, but the bank would not permit the renewal to be made without the payment of a portion of the amount due and additional security given; B., to obtain the renewal, paid the sum required by the bank, and requested C. to go on the note to be given in renew- al, having previously obtained the names of the parties who were bound on the first note, and C. did so ; judgment was obtained on the last note, and H. paid the money and filed a bill against C. for con- tribution ; held, that C. was not a co-surety with H. and others for B. ; but for B. and his original sureties, and therefore not liable for contri- bution to H. Hunt V. Chamiliss, 7 S. & M. 532. 28. One surety has a right to re- ceive a separate indemnity from his principal for himself, and to ap- ply it in extinguishment of his por- tion of his liability ; and it cannot be reached by his co-sureties un- less taken in fraud of them or for their joint benefit. Thompson v. Adams, Freem. Ch. 225. 402 SURETY. 29. A creditor may release one surety from the residue of the debt, on his payment of his portion, and such release will not operate the discharge of the other surety, in equity ; nor can such other surety recover over against the one dis- charged unless for an excess paid by him beyond his due proportion. lb. 30. A surety, where the debt is secured by mortgage of the prin- cipal, may execute his individual note in payment of the debt, and receive a transfer of the original note and mortgage, and proceed to foreclose the same without having paid his own note, and the rule is the same as to an accommodation indorser. Humphreys v. Vertner, Freem. Ch. 251. 31. A principal will not be al- lowed- to collect a debt from his surety while the surety is liable for the principal in a. greater sum, un- less the principal will fully indem- nify the surety against his liability as such ; more especially where the principal is insolvent ; and yet more especially where the princi- pal has agreed that the surety shall retain his debt until released from his suretyship. Ahbeyy. Van Cam- pen, Freem. Ch. 273. 32. The surety of a vendee, for the purchase-money, cannot be dis- charged therefrom for fraud in the vendor, where it appears that the vendee has sold the property and could not therefore place the ven- dor in statu quo. Speight v. Adams, Freem. Ch. 318. 33. Although where it does not appear on the face of the bond or note, that one of the parties is a surety, he cannot at law show that he is a surety and claim the rights of one, yet in equity he may du so, even after judgment ; and where a plaintiif, in an execution, levied on personal property of the princi- pal enough to pay the debt, and afterwards against the remonstrance of the surety, discharged the levy ; held, that the surety was released ; so where a levy was made on land of the principal, and no <3isposition being made of it, the sheriff, with the knowledge and tacit assent of the plaintiff, without returning the execution, abandoned the levy. on the land and made a levy on per- sonal property of the principal, which last levy failed to pay the debt, and it appeared that the levy on the land- was sufficient to pay the debt, and that had it' been sold under the levy it would have paid the debt ; but in consequence of the abandonment of the levy, the lien of the judgment on the land was lost ; held, that the surety was dis- charged and- released from the judgment. Davis v. Mikell, Freem. Ch. 548. TAXES.— TAX-COLLECTOR. 403 TAXES. 1. The mayor and council of the city of Vicksburg have the right, under the city charter, to levy an ad valorem tax on the sales of pro- duce by flat-boat traders, within the limits of the city ; such levy is not inconsistent with • the laws of the state, nor in restraint of trade, nor an " impost or duty" within the meaning of the constitution of the United States. Harrison v. The City of Vicksburg, 3 S. & M. 581. 2. Where a citizen of Ohio comes into this state, and makes sales of his merchandise here, he must do so, subject to the laws of the state, lb. TAX-COLLECTOR. L See Surety, 4 ; when surety on tax-collector's bond discharged by extension of time, by legisla- ture, to tax-collector to collect in. 2. The sureties, on a tax-col- lector's bond are • not liable for taxes collected by him, previous to the execution of their bonds, while acting as tax-collector, under a pre- vious election ; the parties to the bond given, under the first election, would be the parties liable. Mont- gomery V. The Governor, 7 How. 68. 3. "Where a tax-collector was elected, in November, 1837, and gave bond on the 15th of the same month, the sureties on the bond will not be liable for any acts of such collector, previous to his eleO' tion. lb. 4. In an action against the sure- ties of a tax-collector, on his offi- cial bond, for the non-payment of taxes collected, and their non-col- lection by the tax-collector, it is competent for the sureties to show that the tax-collector died before the term of his ofiice expired, and the amount of uncollected taxes left by him, and what kind of money or bank-notes.were received by him, as tax-collector, provided, it was such money as the law au- thorized him to receive. lb. 5. A tax-collector's bond, execu- ted in pursuance of a law in force at the time of its execution, consti- tutes a valid contract, upon which a subsequent repeal of that law can have no effect ; and, therefore, a recovery, at the suit of the state, may be had upon such bond, against all the parties to it, after such repeal. Tucker v. Stokes, 3 S. & M. 124. 6. Where a special law was passed, authorizing a levy, by the board of police of a county, of a special tax to pay for public build- ings, and the law was to continue in operation only three years, no court, after the expiration of the three years, could justify the levy of the special tax, or authorize the tax-collector to proceed to collect it, after the time allowed for the authority given to be exercised, had expired. Ross v. Lane, 3 S. & M. 695. 7. The tax-collector has no au- thority to collect any taxes, but such as are contained in the asses- sor's list, which is made out, and delivered to him annually ; where, 404 TAX-COLLECTOR.— TENANT IN COMMON. therefore, taxes were assessed in 1841, but not collected, the col- lector, in 1844, has no right to col- lect them, unless they are inserted in the assessor's list, for the latter year. II. 8. Tax-collector's bond, the con- ditions of which are to collect and pay into the county and state treasury, all the state and county taxes, and to do and perform all the other duties, which pertain to his office, are not a security for any services rendered to the col- lector, by individuals, but for the state and county only ; therefore, the sureties on such a bond, are not liable to the publishers of a newspaper, for the payment of the cost of advertising the sales of pro- perty, by the tax-collector, for taxes, notwithstanding the law makes it his duty to advertise his sales in a newspaper. Brown v. PUpps, 6 S. & M. 51. TAX-DEED. A court of chancery has jurisdic- tion to decree the cancelment of a tax-collector's deed, in a proper case. Bacon v. Conn, 1 S. & M. Ch. 348. TENANT IN COMMON. 1. One tenant, in common, of a personal chattel, cannot sustain an action of trover against another, and has no remedy, by action, if that other take all the chattel into his separate possession ; but, when opportunity occurs, he may take to himself possession. Hinds v. Ter- ry, Walk. 80. 2. Even though a tenancy in common be created, by deed of gift, effect will be given to words of survivorship ; as where by deed of gift, certain slaves were directed to be divided equally between A., B. & C, when A. and B. attained the age of twenty-one, and C. the age of eighteen, the survivor or survivors.of them, share and share alike in said property and the increase of the female slaves, and C. died before the age of eighteen, the right of the slaves will survive to A. and B., and the husband of C. will have no right to any portion of them. Shanks v. Cliambless, Walk. 249. 3. In an action of ejectment, by the vendee of one tenant in com- mon, against those claiming under his cotenant, it is incompetent to prove, by parol, the declaration of the plaintiff's vendor, that he had many years previous, conveyed all his interest, in the land in contro- versy, to his cotenant ; if such conveyance were lost, it could be set up by bill in equity. Harmon V. James, 7 S. & M. 1^1. 4. It seems, that one tenant in common cannot maintain an action of ejectment against his cotenant, or those claiming under him, with- out proof of ouster by such co- tenant ; an ouster, however, may be inferred from circumstances, and it is a matter of fact for the finding of a jury. 11. 5. Whether, if a tenant in com- mon be ousted by his cotenant, he may lawfully convey his interest in the premises, or, whether the deed will be void for champerty .' Qumre ? «Yet, if, in an action by those claiming under one tena!nt, against those claiming under his cotenant in common, the court in- struct the jury that, if the deed from the tenant,- under whom the plaintiff claims, was made after the TENDER. — TITLE. 405 ouster by his cotenant, the deed was void for maintenance, and the jury find for the plaintiff, the ver- dict vi^iU not be disturbed, at the in- stance of the defendant. lb. TENDER. 1. The offer of money, in bags, is a legal tender, and it is the duty of the receiver to count it, and see that it is enough. Belialy v. Hatch, Walk. 369. 2. The general rule is, that if no place be fixed for payment, or per- formance, a tender to the person, is good. Bates v. Bates, Walk. 401. 3. Where a note was payable in cows and calves, and the maker told the payee, at the maker's house, that he had the cows' and calves there, ready to deliver them, but did not show the cows and calves, so as to enable the plaintiff to identify them, that he might prove them, if driven to an action for them ; held, that it was no ten- der, even though the payee refused to receive them. lb. 4. Where a note was payable at a bank, it is not thereby made pay- ' able in the notes of such bank, and a tender of them, therefore, will not be a legal tender. Bull v. Harrel, 7 How. 9. 5. To constitute a valid tender, it must be unconditional, and of a definite and specific character. Bacon v. Conn, 1 S. 65 M. Ch. 348. 6. Where a tender was made for the purpose of redeeming pro- perty sold, at tax sale, and after the tender had been made, the person desiring to redeem also requested the purchaser to deliver possession of the property, and cancel the tax deeds ; held, that the requests formed no part of the tender, and were not limitations upon it. lb. 7. If a person make a tender, coupled with a condition, and the tender be positively rejected, with- out assigning any reason or objec- tion to it, how far the persons re- fusing the tender, can afterwards make objections to the form- and mode of it. QucBre ? lb. See Banks, for tender in Bank Notes. TITLE. L Martin Hackler, who died in December, 1803, having been en- titled, under the act of congress of the 3d of March, 1803, to a sec- tion of land in this state, as a dona- tion claim, which was recognized by a certificate to his heirs and le- gal representatives, by the board of commissioners, on the 11th June, 1806, and confirmed by a patent issuing to the same persons, in July, 1819, the surviving widow of Hack- ler is entitled to dower in the land. The heirs of Hackler claim by de- scent, and not by purchase, and cannot question the validity of the title by which they claim. The patent relates to the act of con- gress, which is the foundation 'of the title. It is the act of congress which constitutes the title, and a patent is not the only evidence of title. Hackler v. Cabel, Walk. 91. 2. The act of congress, and the proceedings of the board of com- missioners, constitute, in themselves, a perfect title in the original donee, which cannot be questioned, or re- voked, by the government itself, (much less by the heirs of the original donee,) and the patent 406 TRESPASS. must relate to them as the founda- tion of the title. lb. 3. See Spanish Laws and Claims, 4-8, as to conflicting titles under Spanish grants, and the effect of patents, and what title requisite in ejectment. Winn v. Cole, Walk. 119; Stark v. Mather, lb. 181. 4. Want of title to personalty, where there is warranty and pos- session, no defence to action for the purchase-money. Brown v. Smith, 5 How. 387. * 5. See Ejectment, 10 ; for how far estate subject to mortgage at the death of the testator will, when from lapse of time the law pre- sumes the mortgage paid, become, by relation back to death of testa- tor, an estate of which he died seized. 6. See Deed, 25-27 ; when title to property affected by want of registration of deed. 7. The rule that a party must recover on the strength of his own title, and not on the weakness of his adversary's, holds equally in equity as at law. Pickens v. Har- per, 1 S. & M. Ch. 539. TRESPASS OM CASE. See Trespass, 2. TRESPASS. 1. See Roads, 3, 4 ; as to how far illegal order of county court to lay out road justifies overseer of road in an action of trespass by owner of soil. Stockett v. Nichol- son, Walk. 75. 2. The true distinction between trespass and case, is, when the act done, itself occasions the injury to the plaintiff's person, or property, the action should be trespass, but where the act itself is not an in- jury, but a consequence from that act is prejudicial, the proper reme- dy is case ; trespass, therefore, for injury to property, can only be maintained where the plaintiff was in actual, or constructive posses- sion ; where, therefore, an injury was done to the slave of A., while in the possession, under hire of B., A. could not maintain trespass, but must sue in case, for the injury to his reversion; B. could sue in trespass ; if A. were to sue in trespass the statute of jeofails would not cure the error. McFarland v. Smith, Watk. 172. 3. See Pleading, 19, for what is good pica to trespass quare clau- sum fregit. 4c. When court of chancery will stay waste by trespasser, see Waste, 1. 5. See Commissioners in Chan- cery, 1. When commitment of witness by, will be a trespass. 6. Where a party who has an insufficient fence, according to the statute, takes up a mule damage feasant in his field, and ties it in his stable, and the mule, in a strug- gle to escape, is choked to death, he will be liable, in an action of trespass, to the owner. Dickson v. Parker, 3 How. 219. 7. If a party take cattle by legal distress, and afterwards destroy it, or injure it, he will be liable in trespass for the injury ; the law will treat him as a trespasser ab initio. lb. 8. See Chancery, 105 ; chancel- lor will not restrain a mere tres- 9. The owner of the soil may waive trespass, and sue in assUmp- TRIAL OF RIGHT OF PROPERTY. 407 sit, where profits have been re- ceived by injuries done to his real property. O'Conley v. The City of Natchez, 1 S. & M. 31. TRIAL OF RIGHT OF PRO- PERTY. 1. Where four judgments were obtained against the same person, and executions levied, on his pro- perty, and a claimant interposed his claim to the property under the statute, there should be an issue presented for each judgment, and a separate trial had ; as the statute makes the proceedings on the trial similar to those ih detinue. McAnulty v. Bingaman, 6 How. 382. 2. Where damages were assess- ed by the jury, in a proceeding to try the right of property, on ac- count of the fraudulent interposi- tion of the claimant for delay, and there was no evidence to show that the claim was fraudulently made, a new trial should be granted. n. 3. In a trial of the right of pro- perty levied on under execution, "I the onus proiandi lies on the ' plaintiff in the execution to show that the property was subject to it ; the execution under which the levy was made, is an indispensa- ble link in the evidence for the plaintiff in execution, and will not be considered as part of the record, unless embodied in a bill of excep- tions. Ross V. Garey, 7 How. 47. And if the plaintiff do not show • title in the defendant in the execu- • tion he will fail as entirely as ^1 though a paramount title in the claimant had been proved. Thorn- hill V. Gilmer, 4 S. & M. 153. 4. The plaintiff in execution is not bound, when property levied on is claimed by a third party, to tender an issue to try the right of property, unless the debtor will in- demnify him for the risk, expense and delay to be incurred, or will furnish evidence of the fact that the property levied on was subject to the execution. Melton v. How- ard, 7 How. 103. 5. In trials of right of property levied on under execution, if the verdict is for the plaintiff in the execution, it must assess separately the value of each specific piece of property levied on, otherwise the verdict will be erroneous ; and if the jury in their verdict assess the value in gross, it will be error for the court, after the discharge of the jury, to alter it and assess the value separately. Walker v. Com- missioners of Sinking Fund, 1 S. & M. 372. 6. Where an issue was made up to try the right of property to two slaves, Charles and Fanny, and the jury found Charles and Lucy, subject to the execution, it was held that no judgment could be rendered on the verdict. McCoy V. Rives, 1 S. & M. 592. 7 In trials of the right of pro- perty, a verdict of the jury in favor of the plaintiffs in the execution is equivalent to the special verdict required by the statute, that the property is subject to the plaintiff's execution. Thomas v. Estes, 2 S. & M. 439. 8. The provision of the statute regulating trials of right of pro- perty, that if the property levied on be assessed by the jury to a greater value than the amount of the execution levied on it, the ac- tual amount due, shall be indorsed on the execution issuing on the 408 TRIAL OF RIGHT OF PROPERTY. claimant's bond, is merely manda- tory on the clerk, and does not ap- ply to the judgment of the court. lb. 9. Where the verdict in a trial of right of property, assessed the value of the property separately and was in favor of the plaintiffs in the execution ; but the judg- ment of the court did not pursue the verdict, and was not in the alternative either for the property or its assessed value ; held, that the high court would not disturb the verdict, but correct the erroneous judgment, lb. 10. The execution of a claim- ant's bond to try the right of pro- perty, is a legal amotion of the levy ; and the plaintiff in the exe- cution after a verdict in his favor upon a trial of the right of such pro- perty, cannot be compelled to pur- sue his remedy on the claimant's bond before another execution can be taken out on the original judg- ment ; that bond is but a cumula- tive security. Walker y. McDowell, 4 S. & M. 118. 11. See Evidence, 237-240; who incompetent witness in trial of right of property ; and how com- petency may be restored. 12. The trial of right of pro- perty under the statutes of this state, of December, 1830, ch. 87 ; and of 1822, ch. 27 ; the Verdict if for the plaintiff in the execution, must be like a verdict in detinue, and the juiy must therefore assess the separate value of each piece of property levied on, and which they find subject to the execution. Pen- rice V. Cocks, 1 How. 227 ; Been V. Lindsey, 2 S. & M. 581 ; Walker V. Commissioners of Sinking Fund, 1 S. & M. 372; Pritchard v. Myers, 3 S. & M. 42. 13. If a claimant give bond for the trial of the right to property levied on, and, at the trial, the is- sue is decided against the claimant, he has the right to surrender the pro- perty levied on, in discharge of the bond ; and if, during the pendency of such issue, the property levied on is taken out of the claimant's hands, by older executions, it operates as a discharge of the claimant's bond, and a court of equity will grant the claimant relief against the junior judgment-creditor. Ferriday v. Selcer, Freem. Ch. 258. 14. And in such case it will be no answer to the bill at the suit of the claimant, that one of the older executions, under which the pro- perty was sold, belonged to the claimant, and was levied by him on the property, and that he bought some of the property at less than its value ; and that all the older exe- cutions were levied by the claim- ant's consent, on the property ; nor will the fact that the older ex- ecutions had been previously levied, and those levies afterwards dis- missed, make any difference, lb. 15. Where a trustee, to whom property had been conveyed in trust, to secure certain creditors, on a judgment at law being ob- tained against the grantor, and execution thereon levied on the property, and the trustee gave a claimant's bond to try the right, which a jury decided against the trustee, and the judgment thereon was affirmed by the high court of errors and appeals ; held, that the trustee might, in chancery, dis- charge himself and sureties from such judgment, by showing that all the trust property had been sold out of his possession, by executions older than the one under which the trial of the right of property was had. lb. TROVER. — TRUSTEES OF SCHOOL LANDS. 409 TROVER. 1. One tenant in common of personal chattel cannot maintain itrover against the other, who takes possession of the personalty. Hinds V. Terry, Walk. 80. 2. The measure of damages in trover is the value of the personal chattel, and interest from the date of conversion. lb. 3. In trover for the value of a slave, the, damages would he the value of the slave at the date of conversion, with its yearly value from that date. Texada v. Camp, , Walk. 150. 4. If A. sells an unsound slave, with warranty, to B., in an action by B. against A.', on the warranty, it is no defence 1o the action, that before its institution B. sold the same slave to C, and that no re- covery has been had against B. lb. 5. In trover the plaintiff must prove the right of property, and right of possession in Ijimself, and conversion, actual or constructive, by the defendant ; where, therefore, P. sold slaves to S. by bill, with warranty of title, which were sub- ject to a judgment against P. ; and S- afterward sold the slaves to L., and the slaves in the hands of L. were levied on by an execution on * the judgment against P., and sold ; L. cannot sue P. in trover for the slaves, Phillips v. Lanej 4 How. 122. TRUSTEES OF THE POOR. Trustees of the poor are a pub- lic Corporation, subject to legisla- tive control, and the legislature may, therefore, by law, stay an execution obtained by Ihem: Gotj- ernor v. Gridley, Walk. 328. 35 TRUSTEES OF SCHOOL LiANDS. 1. See Corporations; 3, 4; for character of trustees of school lands, and what they must prove under general issue. 2. The trustees of school lands, being quasi porporations, may sue themselves as individuals, indebted to the' trustees, even .though the names of the trustees appear in the declaration as plaintiffs, and a por- tion of them in the same declara- tion as defendants ; the rule, that the same person cannot be- both plaintiff and defendant in the same suit, is confined to natural per- sons, and does not apply to corpo- rate bodies; Connell v. Woodard, 5 How. 665. . 3. The various acts of the legis- lature, with reference to the 16th sections of land, reserved by act of. congress- from sale, have been so long acquiesced in by. congress, and acted on and recognized, with- out objection, that the right of the legislature to pass such laws, they being based on the hypothesis that the acts of congress make a grant of such sections to the state, will not be questioned. lb. 4. See Pleading, 100. On a note payable to E. " president of board of trustees in township, &c., and his successors in office, &c.-," an action may be maintained in the name of " W., successor of E. in (he office of president of schools and school lands, in, &o." with an averment that such person was in- tended by the description of the payee'in the note. 5. The legality of the election, of trustees of school lands cannot be investigated on a bill in chan- cery charging that a sale of school lands made by them was illegal, on 410 TRUST, TRUSTEE, AND DEED OF TRUST. account of their illegal election ; their acts are valid, though only trustees, de facto ; and their le- gality can only be .questioned by an information in the nature of a quo warranto. Moore v. Cald- wetl, Ereem. Ch. 222. TRUST, TRUSTEE, AND DEED OF TRUST. 1. See Land Laws, 3, 4, 5, as to when junior grantee of land, who -gets patent, .Holds as trustee . for senior grantee. Stark v. Mather, Walk. 181; 2. Fraudulent grantee declared trustee for grantor, in particular case, and trust established by pa- rol. See Chancery f 15, 16. Dis- ■ mikes V. Terry, Walk. 197. 3. See Chancery, 4, as to whether trustee bound tq account, where he answers, in response to the bill, that the trust-property is exhausted. 4. See Chancery, 306, as to re- sulting trust in grantee where the legal title has been conveyed to him to secure to him a sum of money.' 5. See Executvr and Adminis- trator, 26, 27 ; how far trustees may plead the statute of limitations against their cestui que trusts ; and in what character administrators stand in relation to distributees. 6. A deed of trust to secure the payment of money, in which the trustee is empowered to sell, on failure to pay the debt secured, is but a mortgage, with a power of fpreclosure out of court ; is a valid instrument, and may be enforced by a sale by the trustee ; and such sale will conclude the grantor. Sims V. Hundly, 2 How.' 896. 7. The legislature of Georgia, in 1784, passed an act, appointing D. and others, commissioners to make surveys in the Tennessee bend, and do' other duties connected with it, and in the next year the legisla- ture passed an act allowing ten thousand lacres of land to each commissioner, to be located on the Tennessee river ; befoT^ they were located, Georgia ceded the land to the general government, and the commissioners were not able to make their ' locations ; D. trans- ferred, his interest to his son H. ; ; and, in 1824, cpngress recognized , the claim of D.^who had previously! died, and authorized D.'s heirs, in; settlement thereof, to enter five ' thousand acres of land, either in . Alabama, or Mississippi ; H. made , the entries of the land, but the pa- ' tents were issued in the name of the heirs of D. ; held, .that D.'s in- terest in the land, when he sold to H., was the subject of a grant, and that the heirs, of D. stood seised of the legal estate, as trustees, for the use of H. and his heirs. Downs v. Downs, 2 How. 915. 8. Where a trustee has a dis- cretion to hire out, or otherwise dis- pose of the trust slaves, as he may think best calculated to benefit the cestui que trust, he cannot mingle the trust slaves with his own, and work his plantation in partnership, and give the beneficiary his portion of the profits merely ; the beneiiciary will be entitled to recover a fair hire for the < slaves. Johnson v. Eichey^ 4 How. 233. 9. See Evidence, 212 ; vs^here trustee competent witness. 10. Where a note has been se- cured by a deed of trust, and a new note given in lieu of the first, and a change made in the place of payment being the only difference between the notes, the security of the deed of trust will not be affect- TEUST, TRUSTEE, AND DEED OF TEUST. 411 1 ed by such change. Whittaker v. Dick, 5 How. 296. 11. Where personal property is conveyed to a trustee to secure Cer- tain suras of money to different persons, but is to remain in posses- sion of the grantor until he makes default in the payments, and one of the cestui que trusts obtains pos- session of the property, the trustee who is .authorized by the deed to take possession, in order to malse a sale, may, after default by the grantor, sue the cestui que trust in detinue, and recover possession of the property." Newman v. Mont- gomery, 5 How. 742. 12. The legislature may appoint trustees, and fconvey property in trust to them, and such trustees may sue at- law oh any contract within the scope of their powers. Commissioners of the Sinking Fund v. Walker, 6 How. 143. 13. Where 4- buys land, take? possession, and pays the purchase- money, but has the legal title made to B. ; tlie lE^tter is trustee of a satisfied trust, and his heirs cannot oust A. in ejectment. Brown v. Weast, 7 How. 181. 14. Where a deed of trust was executed oh real and personal estate, to secure an indebtedness to the grantee, and the plaintiff in a junior execution, on a debt con- tracted subsequent to the deed of trust, levies on the personal pro- perty, before the trust is closed, the deed of trust will be a valid bar to such plaintiff's right, unless it is expressly found that it was made with a view and intent to commit a fraud on those who might subse- quently give credit to the grantor. Wright V. Henderson. 7 How. 539. 15. If property, conveyed by a deed of trust, is more than suffi- cient to pay the trust debts ; or if the creditor Jie tardy in enforcing his deed of' trust, the appropriate remedy of those not embraced in the deed of trust 'is by bill in chan- cery to compel a fair settlement, to have the debts secured' by the deed fSaid off, and a decree for the residue, if any, in favor of other creditors, lb. ^ 16. The interest of the grantor in a deed of trust of personalty is-- not saleable under execution at law. , Thornhill v. Gilmer, 4 S. & M. . 153. 17. See Fraud, 28, -29, 30; when deed of trust is void by rea- son of fraud of grantor, though cestui que trust and trustee no • party to the fraud. 18. See Fraud, 31, 32 ; where grantor in a deed of trust retains possession 6i personalty, how far fraudulent.' 19. Bee Bills of Exchange and Promissory Notes, 176 ; where all the notes secured by a deed of trust have matured, and a sale of the tr'ust property takes place, the pro- ceeds must be ratably distributed among the different notes. 20^ Where a person purchases / a legal title, with a knowledge of the outstanding equitable, title, he - is but a trustee for the- latter. / Thompson v. Wheaily, 5 S. & M. 499. Sr- S-V-. '>'',v.^/ 21. Where a trustee, to whom a slave has been conveyed as secu- rity for a debt, institutes an action of detinue against a person not a party to the deed, for the recovery of such slave, the recital in the deed of trust, and the production of the note, to secure which the negro was conveyed, will be prima facie evidenceof the iona fides of the debt thus (secured. Hundley V. Buckner, 6 S. & M. 70. 412 TEUST, TRUSTEE, AND DEED OF TRUST. 22. Whether the sale of a slave, under a deed of trust, by which the slave vi^as conveyed to a trustee to secure a debt due to the cestMi que trust, will be valid, if made by the trustee, while the slave is in the ad- verse possession . of another, and not present at flie sale, qAcere ? lb-. 23. See Statute of Limitations, 33 — 34 ; how far it runs against a trust, and when. 24.. Whenever a trustee sells the trust estate, and becomes himself the purchaser, the sale may be set aside, at the option of ^he cestui que trust, as a matter of course, without regaid to the fairness or unfairness of the sale ; in setting the sale aside, however, the court will order the property to be re- sold ; and if it should not bring a higher price in the second sale, then the original sale will be con- firmed ;■ or thS' court, in its discre- tion, may set aside the sale entirely, if necessary, and order the pur- chase-money to be refunded ; the same rule applies to a purchase by a guardian of his ward's property. Scott v. Freeland, 7 S. & M. 409. 25. Where a trustee has become the purchaser of his. cestui que trusfs property, if the cestui que trust do not take steps, in a rea- sonable time after he comes to a knowledge of the sale, or, if he is a minor, after his disability is re- moved, to set the sale, aside, his assent to the purchase will be im- plied ; where, therefore, N. S. died, leaving five^ children, and W.- be- came guardian for two of them, B. for two, and F. for one ; and the guardians obtained an order of sale of their wards' realty, and it was sold, and F. became the purchaser, and at the time of sale the oldest of the wards was twenty and the youngest about twelve ; and, ten years after the sale, the wards ex- hibited their bill against F. to have the sale set aside, because F. was the purchaser ; held, that tlie laches of the two oldest children and their delay and neglect in not applying earlier to have the- sale set aside, implied an affirmance of the sale by them, and precluded them from the relief sought. lb. 26. I'he assent of the cestui que trust to the purchase by the trus- tee, in order to ratify the sale, need not be express ; it is often implied by circumstances, one of the strongest of which is a failure to take immediate step^, on his at- taining majority and a knowl- edge of the sale, to set it aside ; so, also, his receiving the purchase- money, when of age and with a knowledge of the sale, is an affirm- ance of the purchase, and vests the ^5t)perty in the trustee ; thoiigh in the case' of guardian and ward, the , reception by the latter of his distributive share, on his arrival at age, ought not to be construed too strongly against him, and ought not to operate to his prejudice^ when it is obvious that he acted without due precaution. lb. 27. A deed of trust, made by P., to secure all judgments out- standing and unsatisfied against P., or the firm of B. & P. , cannot be held to embrace a judgment against L. & P. ; where, therefore, P. executed a deed of trust, to secure, first, all judgments unsatisfied against him- self or B. & P. ; second, a note to C, executed by L. &> P., and indorsed by S. P. L, ; and after that to pay certain other debts ; and H., having a judgment against L. & P., sought" by bill in equity to recover of C, a sum of money paid him on account of the note due to him, on the TRUST, TEUSTEE, DEED OF TRUST.— TURNPIKE. 413 ground, that, by the terms of the deed, they were preferred to C. ; and it was in proof, by the attorney who drafted the deed of trust, that the judgment of H. was not intend- ed to be secured by it, and if in words it was so secured, it was a mistake ; held, that H. was not en- titled to any benefit under the deed of trust. Lauderdale v. Hallock, 7 S. & M. 622. 28. A person for whose benefit a trust is created without his knowl- edge, may afterward affirm it, and enforce its execution. Mar Lin v. GUsscock, 1 S. & M. Ch. 17. 29. To enforce a specific trust upon real estate from loose and equivocal Expressions, made by one "of "the parties in mere social con- versations held at different times, would be inequitable, and contrary to the spirit and policy of the statute of frauds. Mercer v. Stark, 1 S. & M. Ch. 479. 30. The existence of an express trust necessarily excludes the idea of an implied trust in relation to the same thing, lb. 31. Where notes are given, and a deed of trust executed to'secure their payment, it is no ground for enjoining a sale under the deed of trust, that a suit at law is pending on the notes, in which their validity is questioned. Gibson v. Niblett, 1 S. & M. Ch. 278. 32. See Judgment, 139 ; interest of grantor in a deed of trust, or of cestui que trust, not subject to seiz- ure and sale, under execution at law. 33. See Chancery, 19 • extin- guished deed of trust keptjalive for ^ the benefit of party who has paid it. 34. If property be purchasa|kj)y | A., with the money of B., A.Will hold as trustee for B., and will be decreed to m^e title to B. Powell V. Powell, F|eem. Ch. 134. 35. A trust may be created which may be perfectly consistent with the law, and yet the law may have pointed *ut no mode of en- forcement, still it would not inters pose to prevent its enforcement, but would leave its execution to the voluntary action of the trustee. Ross V. Duncan, Frem. Ch. 587. TURNPIKE. 1. Where the assignees of a' turnpike road company sue for tolls for passing over the road,_ it is not necessary to make proferi in the- declaration of the grant of fran- chise, the transfer and the authority to exact toll ; they arg all matters of evidence. Bulany v. Starke, 7 S. & M. 375. ■*^bligor therein, for a failure to make title, which neitherayers tha_t the vendee demanded a deed of the vendor, nor that the vendee prepar- ed a deed and tendered it to tlTe Vendor and demanaicTTts execution, is fatally defective. Johnston v. Beard, 7 ,S. & M. 214. 34. Whether a vendee with a bond for title can maintain an ac- tion against his vendor for a failure to make title, after having demand- ed a deed from him"", or whether he must have prepared a deed and tendered it to the vendor and de- manded its execution, Qucere 7 lb. 35. In cases free from fraud, a purchaser of land who is in posses- sion, cannot have relief in chance- ry from his contract to pay, on the mere ground of a defect in title, without a previous eviction ; a ven- dee in possession under a deed with warranty, with no fraud made ma- nifest and with nothing to show that the vendor is not able to pay any damages that may be recovered against him, has no right to call his vendor into a court of equity to litigate an adverse legal title ; he must rely on his covenants if he^ should be evicted ; if he buys with a full knowledge of the defective title, he cannot be relieved from his contract to pay because of such de- fect. Vick- V. Fercy, 7 S. & M. 256 ; and if he has protected him- self with covenants, he is not enti- tled to be relieved from his con- tract, if it be unmixed with fraud, until after eviction. Walker v. Gilbert, 7 S. & M. 456. 36. McG. purchased of the board of police of Ponola countj', a lot in the town of Ponola, and took a bond VENDOR AND VENDEE. 423 for title when the last instalment on the lot was paid ; McG. sold the lot to W., and assigned him the title bond without any covenants on his part ; W. contracting to pay the last instalment due by McG. to the board of police. E., under a judgment recovered by him against McG. after the assignment of the title bond to W,, had the lot sold by the sheriff, and bought it him- self, having full notice of the as- signment of the bond to W. — E . then procured the 'board of police, by their president, to execute direct to him a deed to the lot, and he paid them the last instalment due by McG., and which W. had assumed the payment of ; the board of po- lice having notice also of the assign- ment of the bond to W. E. ob- tained possession t»f the lot, and put improvements upon it. \V. filed a bill to have the deed to E. from the president of the board of police set aside and cancelled, and for a specific perforniance of his contract with the board of police ; held, that W. was entitled to the relief sought, but that E. had a lien on the lot for the instalment paid by him to the board of police ; and that he should be allowed for his improvements, to be applied to the extinction of the rent so far as they would go. Ellis v. Ward, 7 S. & M. 654. ' 37. Where a vendee takes from j his vendor such title only as the ; vendor had, he cannot afterwards, j for mere defect in title, obtain a re- ^ scission of the contract. Pintard '' V. Martm, IS. & M. Ch. 126. 38. Where by contract of sale of real estate, part of the purchase- money was to be paid down, and the remainder in instalments, se- cured by deed of trust, before the property was to be delivered ; and _only a portion of the cash payment was made, and the property was delivered, and the deed of trust for the instalments taken ; Jield, that the vendor had no equitable lien upon the land sold for the unpaid portion of the purchase-money agreed to be paid in cash ; as the express lien reserved for part of the consideration excluded the idea of the implied lien for the res- idue ; that the court in dismissing the vendor's bill, filed to enforce such supposed vendor's lien, will do so at the vendee's cost who oc- casioned the injury. Phillips v. Sanderson, 1 S. & M. Ch. 462. 39. Where covenants are mu- tual and dependent, and have been violated by one party thereto, and the other desires to absolve himself therefrom, he must ofTer to com- ply fully with his part of the con- tract before he can absolve himself therefrom ; where, therefore, H. bought land of P. & L., and gave his notes for the purchase-money, and took their bond for title, and H. did not pay his notes when due, and P. & L. sold the land to B. & M., who had knowledge of the sale to H., and H. filed his bill offering to pay the notes and de- manding title ; held, that H. was entitled to the land upon payment of the notes, and that B. & M. held the title for the benefit of H. Hincs v. Eaine, 1 S. & M. Ch. 530. 40. Where a vendee is seeking relief in equity against his grantor in a deed on account of a failure in title to the property conveyed by the deed, a general charge of de- fect of title, without stating in what particular that defect consists, is not a sufficient charge to entitle him to any relief therefor. La- tham V. Morgan, 1 S. & M. Ch. 61 1. 41. Where the vendee is let into possession under his deed, and no 424 VENDOR AND VENDEE. eviction actual or threatened is charged, the allegation of the .tw- solvency of the grantor, will not be sufficient to entitle the party to re- lief against a defect of title to the property. lb. 42. Where the vendor of land represented himself as the as- signee of certain Indians, entitled to reservations of lands, and upon that representation, made a sale of the lands ; and on a bill filed by the vendee to rescind the contract on the ground that the representa- tion -vias fraudulent and untrue ; held, that, the vendor not exhibiting on the hearing any evidence of his title, and the vendee showing nega- tively a want of title in the vendor, the contract must be rescinded. Wilkinson v. Davis, Freem. Ch. 53. 43. See Grant ; non compli- ance with conditions subsequent, defeats a grant, and the land re- verts. 44. Where the purchase-money has- been paid, and the vendee let into possession under a parol con- tract, and suffered to make valua- ble improvements, the case is taken out of the statute of frauds and a decree for a specific performance of the contract will be ordered. So also where the contract of sale is written out and one of the par- ties, after having agreed to do so, is prevented by death, unavoidable accident, or the fraud of one of the parties, from signing it. Finn- cane v. Kearney, Freem. Ch. 65. 45. If one buys a defective title knowing it to be so, and takes no covenant of title, he must abide the consequences. Allen v. Hop- son, Freem. Ch. 276 ; and if there is no fraud, even if the title wholly fails, he has no relief either at law or equity ; and if the vendee seeks to enjoin the payment of the pur- chase-money oni the ground of fraud in the vendor, he must pray for a rescission of the contract ; and on a bill merely praying for injunc- tion, no relief can be given. Wil- liamson V. Raney, Freem. Ch. 1 12. 46. A vendee who has taken a bond for title, on payment of the purchase-money, cannot enjoin the collection thereof, on the ground of want of title in the vendor, un- less he has tendered the vendor the purchase-money and demanded a deed, and the vendor is unable to comply. Mitchell v. Sherman, Freem. Ch. 120. 47. The rule in relation to exe- cutory contracts for the conveyance of lands, is, that if the vendor fail to convey, according to the terms of his contract, the measure "of damages, is the value of the land at the time of the breach, and not the price fixed in the contract ; it is otherwise, where the contract is executed, there the purchase-mo- neys, with interest, is the measure of damages. Gridley v. Tucker, Freem. Ch. 209. 48. See Fraud, 42 ; for what is undue concealment on the part of the vendee, to procure vendoi: to make deed. 49. A vendee who buys up and discharges an incumbrance, can only claim against his vendor the amount actually paid ; where there- fore, A. sold B. a lot of ground, and took a deed of, trust, to secure the purchase-money, Eiiid there was at the time a judgment for a small amount against A. older than the sale to B ; and the lot being levied on under that judgment, B. pro- cured C. to bid it off for him, and then before the sheriff made a deed to C, B. sold the lot to D., and the sheriff made the deed direct to D. VENDOR AND VENDEE. — VENUE. 425 who had notice, or did not deny notice of the claim of A. ; held, that the lot in the hands of D. was subject to the deed of trust, in fa- vor of A., after deducting what the lot sold, for at the execution sale. Harper v. Reno, Freem. Ch. 323. 50. A vendee of land having a mere bond for title, and the pur- chase-money not paid, has no such interest as is the subject of seizure and sale under execution at law ; yet where the vendor in such case has obtained a judgment at law for the unpaid purchase-money, and levies on the land sold, and sells the same under his execution to a third party, the vendor cannot ob- ject to the legality of the sale, nor enforce in equity his vendor's lien for what yet remains due after such sale, of the purchase-money ; the vendor will be considered as' having elected that mode of en- forcing his lien, and will be decreed to convey the legal title still in him to the purchaser at the execution sale. Thompsons. McGill, Freem. Ch. 401. 51. Although the vendor's equi- table lien is not assignable yet if a lien for the purchase-money be ex- pressly retained in the face of the notes and the deed, an assignment of the note will also carry with it an assignment of the lien. Briggs V. The Planters Bank, Freem. Ch. 574. 52. A rescission of a contract on account of alleged defect of title, will not be granted where at the hearing of the case, it is ap- parent a perfect title may be had, and no fraud is alleged or proved. Fletcher v. Wilson, 1 S. & M. Ch, 376. 53. A person selling property under a defective claim, afterwards by purchase or descent acquires a 36* I perfect title, held, that that title will accrue to the benefit of the ven- dee, lb. 54. As a general rule, a court of equity will not rescind a con- tract for mere defect of title, where the vendor has been guilty of no fraud, mistake or misrepresentation, unless at the time of the decree, it appears that the vendor is totally unable to make title, and there is no adequate remedy at law. lb. 55. A defendant, discovering a defect in his title, should at once, if he design doing so at all, surren- der the possession of the property and demand , a rescission, and his I neglect to do so is a waiver of his I right to a rescission. lb. VENUE. 1. It is error to refuse to change the venue, when the defendant makes oath that he is a resident freeholder of a different county from that in which the action is in- stituted. Spain V. Winter, Walk. 152. But whether, on the death of the defendant, and a sci. fa^ against his representatives, they can change the venue, on the ground that they are freeholders of a differ- ent county, quare ? Neeley v. Planters Bank, 4 S. & M. 113. And where all the defendants live out of the county where they are sued, the case will be dismissed, and not the venue changed. Bank of Vicksiurg v. Jennings, 5 How. 425. 2. See Practice, 17 ; as to power of parties to change venue by con- sent. 3. On a change of venue, a writ of error, after verdict, will not, it seems, reach a defect in the origi- nal panel of the grand jury, es- 426 VENUE. — VERDICT. pecially where that panel was not made part of the record by bill of exceptions. See Circuit Court, 2 and 3. Byrd v. State, 1 How. 247. 4. Where a venue in a cause is changed, the order of the court granting the change must appear affirmatively in the record ; the recital of the clerk that the venue was changed, will be insufficient to give the other court jurisdiction. Saunders v. Morse, 3 How. 101. 5. It is too late, after a trial be- low, to object to the jurisdiction of the court below, on the ground that the record does not show a regular change of venue ; such objection should have been made below ; it will not be regarded in the high court of errors and appeals. Prus- sel v. Knowles, 4 How. 90. 6. Where a change of venue was moved for in the court below, and the motion not disposed of, it will be held to have been waived. The affidavit for a change of venue is no part of the record, unless made so by bill of exceptions. Grant v. Planters Bank, 4 How. 326. 7. Where the prisoner has ap- plied for and obtained a change of venue, he cannot question the regu- larity of the proceeding ; if the record be silent on the subject, the court will presume it to have been regularly done. Loper v. State, 3 How. 429. 8. See Board of Police, 6 ; does not apply to appeals from the board of police. VERDICT. 1. Verdict without an issue, or judgment by default with writ of inquiry, erroneous. Hendricks v. Snodgrass, Walk. 86 ; Horn v. Gillock, lb. 107; Wilkinson v. PaMerson, 6 How. 193; Harrison V. Agricultural Bank, 2 S. & M. 307. 2. See New Trial, 6, 7, 8, 9 ; verdict erroneous, if jury take out paper not read on the trial, or sep- arate, even with an officer, without permission of court. Taylor v. Sorsly, Walk. 97; Offit v. Vick, lb. 99. 3. A verdict without the judg- ment of the court upon it, will not sustain the plea of former recovery. Butler V. Stephens, Walk. 219. 4. See Jury, 4 and 5 ; as to when verdict erroneous for want of their being sworn. 5. Verdicts, substantially good, may be moulded into proper form ; thus, " we the jury find for plain- tiff," will be a good verdict, though there were two issues of fact, and the jury were only sworn to try ' ' the issue joined." Montgomery v. Til- lotson, 1 How. 215. 6. The verdict in these words : " We of the jury find for tlje plain- tiff, the debt in the declaration mentioned, to be discharged by the payment of the same," &c., is sufficient. Maulding v. Rigby, 1 How. 579 ; lb. 4 How. 222. 7. A verdict in action on a coro- ner's bond : " We find for the plaintiflf, the debt in the declaration mentioned, which may be dis- charged by the payment of the sum of $318 49 ;" sufficiently formal to show the amount of damages assessed. Longacre v. State, 2 How. 637. 8. A verdict cures immaterial issue. Chicjj,ester v. Daggett, 2 How. 863. 9. Where the verdict on an is- sue which presents a negative pregnant, shows for which party judgment ought to be rendered, the error is cured by the statute of jeo- VERDICT. — VICE-CHANCEEY COURT. — WAIVER. 427 fails. Carmichael v. Brotader, 4 How. 431. 10. See Amendment, 6; when verdict may be amended after jury- retired. 11. See Trial of Right of Pro- perty, 5 and 6 ; for form of ver- dict in, and power of court to alter, and the necessity of its conforming to the issue. 12. A verdict by the jury in fa- vor of the plaintiff, instead of plaintiffs, when the record shows they were empanelled to try the issue in the case at bar, is sufficient. Henry v. Halsey, 5 S. & M. 573. 13. See Jury, 34 ; verdict irre- gular, made by agreement that each juryman should assess a sum, and the division of the aggregate sums by twelve be the verdict. VICE-CHANCERY COURT. 1. The constitution of the state provides that there shall be " a separate superior court of chan- cery, with full jurisdiction in all matters of equity ; " it also pro- vides, after establishing the cir- cuit, probate, and other courts, that " the legislature might, from time to time, establish such other infe- rior courts as might be deemed necessary, and abolish the same whenever they should deem it ex- pedient." The legislature, in 1842, established an " inferior court of chancery," having but a district jurisdiction, concurrent with that of the superior court of chancery, which was general ; its jurisdiction was limited in amount ; those re- siding out of the district could re- move causes pending in the inferior to the superior court, and in all cases there was an appeal to the superior court of chancery ; Jield, that the act was constitutional. Houston v. Royston, 7 How. 543. 2. Where the constitution pro- vided that all officers should be elected, and hold their offices for a limited time, and the law establish- ing the vice-chancery court, pro- vided that the vice-chancellor should hold his office until the next general election, and until his suc- cessor was qualified, and the law made no provision for the appoint- ment of his successor ; held, that the first vice-chancellor would hold until Nov. 1843, when the office would become vacant, and remain so until the legislature should pro- vide for filling the vacancy ; that portion of the law authorizing him to hold over until his successor was qualified being unconstitu- tional, lb. w. WAIVER. A waiver, in the record, in these terms : " came the parties by their attorneys, and the defendant waives all service of any writ and plead- ings ;" estops the party from as- signing for error, the want of writ 428 WARRANTY. and pleadings or of authority in the attorney. Walker v. King, 1 How. 17. Appearance and plea cures defect in process. Stevens v. Richer, 1 How. 522. WARRANTY. 1. See Trover, 4:; as to action on warranty of soundness, by vendee of unsound slave, where vendee has resold before action brought. Texada V. Camp, Walk. 150. 2. In an action for breach of warranty, scienter need not be proved if averred. McLeod v. Tutt, 1 How. 288 ; so also in plea in bar of warranty and breach of it. Williams v. Harris, 2 How. 627. 3. See Pleading, 42 ; how war- ranty must be pleaded. 4. Any words which amount to an affirmation of soundness, is a good warranty ; the word " war- rant need not be proved ; a bill of sale, therefore, representing ne- groes as sound in body and mind, is a good warranty ; it is the pro- vince of the jury to say whether the affirmation in a particular case amounts to a warranty or to an assertion merely. Kinley v. Fitz- patrick, 4 How. 59 ; Anderson v. Burnett, 5 How. 165. 5. A judgment against the ven- dee of slaves, with warranty, in favor of a third person suing for the slaves, is a breach of the war- ranty of the vendor, for which an action may be maintained. Pickett V. Ford, 4 How. 246. 6. Where there is a warranty of title given on the sale of per- sonal property, and the possession of the vendee remains undisturbed, he cannot set up a want of title to the personalty, as a bar to the re- covery of the purchase-money ; it seems it would be otherwise in case of implied warranty. Brown V. Smith, 5 How. 387. 7. It seems that where there is a warranty of title of personal pro- perty, and it is afterwards taken out of the possession of the vendee by execution against the vendor, the measure of damages would be the value of the personalty at the time it was taken out of the pos- session of the vendee ; semhle a different rule, if the warranty was broken by paramount title in some third person recovering the ne- groes. Bozman v. Brown, 6 How. 349. 8. In an action upon a warranty of soundness of a slave, where the only proof of the warranty was, that the defendant, when told of the unsoundness, and requested to take the slave back, told the plaintiff " he was not in a situation to take care of her, but if he would keep her, and she died, he would pay all expenses and it should be his loss," it was held sufficient to up- hold the verdict for plaintiff. Munn V. Perkins, 1 S. & M. 412. 9. Every workman, who con- tracts to do a piece of work, there- by impliedly warrants that he will bring sufficient skill and dexterity to its performance to complete it in a just and workmanlike man- ner, and if he do not do so, he is not entitled to recover pay for it. Leflore v. Justice, 1 S. & M. 381. 10. It is competent to prove a parol warranty of title and sound- ness of a slave sold without bill of sale. Houston v. Burney, 2 S. & M. 583. 11. The assignment by the ven- dor to his vendee, of the bill of sale of his own vendor, containing WASTE. — WHARFAGE. — WILL. 429 a clause of warranty, is not of itself evidence of a warranty. Ih. 12. The following words in a bill of sale of negroes, viz. : " which negroes I warrant sound and healthy in body and mind, so far as I know or believe," constitute un- limited warranty of soundness. Col- lins v. McCargo, 6 S. & M. 128. 13. See Slaves, 19. No action can be brought for a breach of warranty of slaves introduced and sold in this state since May, 1833. 14. See Vendor and Vendee, 28, 29 ; whether a deed with special warranty is in any case a com- pliance with a bond to make title. WASTE. A bill for an injunction to stay waste, threatened to be committed on lands by one in possession un- der adverse claim, will not lie ; perhaps aliter, in case of lawless trespasser without color of title ; an injunction will not be granted to stay waste, except in cases where irreparable injury will be sustained ; and not where there is adequate remedy at law. Poin- dexter v. Henderson, Walk. 176 ; Nevitt v. Gillespie, 1 How. 108. WHARFAGE. The owner of the soil on the bank of a river, has a right to charge wharfage for the use of a portion of it. O' Conley v. The City of Natchez, 1 S. & M.'si. See also, Morgan v. Reading, 3 S. & M. 366. WILL. 1. A probated will is operative till revoked by the proper tribunal. Herrington v. Herrington, Walk. 322. 2. Two witnesses must be present when a nuncupative will is made. Gibson V. Gibson, Walk. 864. 3. No words will constitute a nuncupative will, without the ani- mus testandi ; where, therefore, a man, when on his sick bed, when asked how he wished his property to go, if he died, stated the disposi- tion he wished made ; and on the next day, on being asked the same question, inquired if he had power to make a will, and on being an- swered in the affirmative, staled a different disposition from that of the day before, the first disposition cannot be established as his will. lb. 4. See Deed; 6, as to whether instrument will or deed. 5. G. having, in 1829, made a will in Alabama, moved to Missis- sippi, and, in 1831, executed a second will ; about two months pre- vious to his death he expressed an intention of revoking his last will, and again disposing of his effects, and for this purpose applied to B. to write a neio will, presenting, at the same time, the will of 1831, in which there were interlineations and erasures, which he pointed out, and also objected to other provisions in the will ; he stated to B. that he had done away that will, and that the interlineations and erasures were made by his directions. B., having taken a memorandum of the additions G. wanted made, took away the will of 1831, to draft a new one by ; in this conversation G. said that if B. should not write a new will, the will of 1829 should 430 WILL. go into effect. G. died before ex- ecuting a new will ; held, that he died intestate ; the will of 1831 be- ing revoked, and that of 1829 not revived. Bohanon v. Walcot, 1 How. 336. 6. The revocation of a subse- quent does not revive a former will, either expressly or impliedly re- voked by the subsequent one ; it requires some express act to revive or adopt a revoked will. lb. 7. v., by his will, gave all his personal estate, in equal shares, to his wife and children, and made a farther provision for his wife ; and gave all his lands to his sons ; and directed his executors to lay off two hundred acres of his land, at their discretion, into town lots, with a direction to them " to remember that the town lots now laid off in the forementioned two hundred acres' of land, should be sold to pay his just debts, and other engage- ments, in preference to any other of his property, for the use and benefit of all his heirs ;" he died, leaving nine daughters and four sons ; it was held, that the daugh- ters had no interest whatever in the two hundred acres, by the devise of their father ; it went to the sons. Vick- V. The City of Vicksburg, 1 How. 379. 8. M., by his will, devised three- eighths of all his estate to his brother, gave several pecuniary legacies, one specific legacy, and directed the residue of his estate to be divided between his nephews and nieces, but said nothing about payment of his debts ; held, that the brother was only entitled to three-eighths of what remained of M.'s estate, after payment of all debts. Fisk v. McNiel, 1 How. 535. 9. See Chancery, 70 ; a court of chancery refused to declare a pa- per, on its face a will, to be a deed of gift. 10. Under the constitution and statutes of this state, the superior court of chancery has no jurisdic- tion over the subject of wills ; it is confined to the probate court. Cowden v. Cowden, 2 How. 806. 1 1 . Where a will con vey ed certain slaves to A., for life, and directed that, after her death they should fall into the testator's estate, a propor- tionate part of which he left to S. and W. ; held, that, upon the death of A., S. and W. could not sue for and recover the slaves bequeathed to A. for life, as a specific legacy to them. Minor v. Steivart, 2 How. 912; semble,Magruderv. Stewart, i 4 How. 204. 12. Adults have five years after the probate of a will, and infants five years after they come of age, to contest the validity of the will ; and if the validity of a will be con- tested in the manner pointed out by the statute, either before or after probate, whether there be infants or not, the decree is absolute against all persons, whether par- ties to the issue to ascertain the validity of the will, or not. The decree is conclusive against all the world, unless it can be impeached on the ground of fraud and collu- sion. Scott V. Calvit, 3 How. 148. 13. Where the testator, by his will, directed his property to be kept together, in the hands of his executors, until his only daughter became of lawful age, or married, and that then his property should be equally divided between his wife and daughter ; held, that the wife of the testator had by the will a vested legacy in the property, which would pass to her second WILL. 431 husband on his marriage with her, and taking possession of the pro- perty, and on his death the child- ren of the second marriage would be entitled to two-thirds of the legacy ; and if the second husband adminis- ters on the first husband's estate, after renunciation of the executors, but claims the property in his own right, by the marriage, his posses- sion of it will be a sufficient reduc- tion to possession, to prevent the right from surviving to the widow on his death. Scott v. James, 3 How. 307 ; to the same effect is Wade V. Grimes, 7 How. 425. 14. A clause in a will manumit- ting slaves, is void, and the slaves will go to the residuary legatee, and not to the heir at law. Vick v. McDaniel, 3 How. 337 ; Luckey V. Dykes, 2 S. & M. 60. 15. See Merger, 1, for construc- tion of will where testator left his sole heir a life estate in slaves, and y made no provision for the remain- der. 16. Where a will is made dur- ing a lucid interval in the madness of the testator, it will be binding and valid ; and the testimony of the subscribing witnesses to the will is entitled to greater weight than that of others who had not that duty to perform. Brock v. Luck- ett, 4 How. 459. 17. Where a testator converses rationally, and shows an under- standing of his affairs, it is evidence of a lucid interval. lb. See this case for the circumstances under which a will was held valid, as be- ing made in a lucid interval, where testator was insane both before and after. 18. Although an issue to a jury ought properly to be granted to test the validity of a will, as to the sanity of the testator, the probate judge is competent to decide, and when his mind is satisfied, from the evidence of those who wrote the will and were the subscribing wit- nesses, that the testator was sane at the time, it will not be error for him to refuse to hear other circum- stantial testimony, to establish the testator's insanity. lb. 19. Where a will directed the executors to transport to the coast of Africa, such of the slaves of the testator as should elect to go, there to be settled in Liberia, and remain free, it was held, to be a valid dis- position of the property, and a trust which the executors could not right- fully be restrained from executing ; that it was not against the policy of the state of Mississippi for the owner of slaves to send them out of the state for manumission ; so he might direct it to be done by his will ; it would be otherwise if the slaves were to remain in this state. Ross V. Verlner, 5 How. 305 ; lb. Freem. Ch. 587. So where the testator by his will, in 1836, di- rected his slaves to be set free, and sent to Indiana, or Liberia, as they might ijrefer, and direct- ed also the sale of his property, and part of the proceeds to be paid to the slaves thus liberated ; held, that the will was valid, and the ex- ecutor could proceed in its execu- tion ; and that the bequest of pro- perty to the slaves was not void for want of capacity in them to take ; if they did not comply with the terms of the will the bequest was void, if they did, it was valid. Leech v. Cooley, 6 S. & M. 93. 20. N., by her last will, left cer- tain slaves to B., upon condition that B. would pay to the guardian of the three children of L, deceased, a fixed yearly sum, and on their respective arrivals at majority, 432 WILL. would pay them each the one-third part of four thousand dollars ; B. accepted the legacy, and the pro- bate court required her to give surety for the payment of the sums required to be paid by the will ; held, that B.'s interest in the slaves was an estate upon condition subse- quent ; and that the pecuniary lega- cies to the children were a charge upon the slaves, and constituted a lien upon them, and that B. couldt^the not be compelled to give security, unless she was about to commit^ waste, or do other injury to the estate ; when the remainder-men might interpose. Beck v. Mont- gomery, 7 How. 39. 21. The court of probate has ex- clusive jurisdiction to award an issue of devisavit vel nan. Ham- lerlin v. Terry, 7 How. 143. 22. Under the statute in this state, on the subject of wills, which requires that where the will is not wholly in the handwriting of the testator, it shall, in order to be a valid will, as to realty, be attested by three witnesses, and as to per- sonalty by two ; a will attested only by two witnesses, by which both real and personal estate is devised, is valid as to the disposition of the personalty, but void as to that of the realty. Chapman v. Brown, 7 How. 636. 23. B., by will, directed that her executor should represent to the legislature the meritorious services of her negro slave, and should pro- cure from the legislature an act for his emancipation, and should take charge of her slave, and give him the benefit of his own labor, until he could procure the passage of the act ; held, that the testatrix did not thereby profess to emancipate the slave, and that that clause of the will was not void ; if the legislature would not pass the act, the slave would fall into the residue of the estate ; the will did not create an unlimited trust in the executor, if any trust at all, but merely until the period of the action of the legis- lature on the subject. Shalluck v. Young, 2 S. & M. 30. 24. Although the general rule is, that whatever by lapse, invalid dis^ position, or other casualty, falls into estate, after the date of the will, gogs4p the residuary legatee, and not the nexTof Trin';"yet that rule will not apply, where it appears from the whole will that the persons constituted residuary legatees were onlyto be__s.uch^f^uch_£roperty as was ordered to be sold, the next of kin in such case would take what, by a void devise, would fall into the residue. Luckey v. Dykes, 2 S. &M.,60. 25. Where, by the terms of the will, the whole estate, real and per- sonal, of the testator, if left subject to sale, at the discretion of the ex- ecutor, if, in his opinion, it would be for the interest of the estate to do so, is the real estate thereby con- verted into personalty ? Hart v. Dunbar, 4 S. & M. 273. 26. The first probate of a will, by the probate court, is a mere in- cipient step, necessary to enable the court to adopt the means to carry it into execution, but it is not conclusive on heirs and distributees, and may be opened, and set aside. J. C. died in 1832, and in the same year a paper, claimed to be his will, was duly probated, and letters testamentary granted to his widow ; I. I. C, the son of J. C, was a minor, when the alleged will was probated, but his then guardian ap- peared and contested it in his be- half; in 1843, within three years after J. C. became of age, he filed WILL. 433 a petition in the probate court, that had probated the will, denying the validity of the will, and praying for an issue devisavit vel non ; held, that the object of the petition, to ob- tain a re-probate of the will, was a legitimate and legal one, and the mode pursued for that end, the cor- rect one. Cowden v. Dobyns, 5 S. & M. 82. 27. Where a will, made in an- other state, is probated there, and the testator has property in this state; and a copy of the -probated will is admitted to probate in this state, according to the statute, a certified copy of the probated copy of the will, from the probate court in this state, will be admissible evi- dence of the will. Montgomery v. Millikin, 5 S. & M. 15L 28. Where the testator directed certain lots of ground to be sold by his executor, if, in the opinion of the executor, it should be advisable, to accomplish the purposes of the will, it seems that this is a discre- tionary power, conferred upon the executor personally, and cannot be exercised by the administrator, C. T. A. lb. 29. It is the policy of the law of Louisiana to give effect to the in- tention of the testator, whenever it can be gathered from the will ; and where a testator is inhibited by law from bequeathing over a definite amount to persons holding a cer- tain relation to him, and he exceeds that amount, through ignorance of the law, or other cause, the be- quest will not be void, but that part which exceeds the disposable por- tion will be reduced to the disposa- ble amount, and held valid so far ; for a bequest in that state of a greater interest in property than that which the law authorizes, but which is capable of reduction or 37 conversion to the legal standard, is not void, unless some law has rendered it illegal, or it is contrary to the spirit of the law ; where, therefore, by the law of Louisiana, a person who has married a second wife, and who has children by a former wife, and is inhibited by law from leaving his widow^ore than one-fifth of his estate, and that only as an usufruct, makes a will, leaving to his wife a large sum of money absolutely^ the legacy will not be void, but must be converted from the bequest of an absolute sum, into its equivalent of usufruct ; the proportion that the usufruct bears to the absolute estate, where usufruct and absolute property are marshalled, is, that the usufruct of the whole is equal to the right of property of the half, and in that ratio, lb. 30. A., domiciled in Louisiana, died, leaving a second wife and children by his first wife surviving him ; by his will he gave five thou- sand dollars in fee to his secpnd wife ; held, that the testator being prohibited by law from leaving to his wife more than the usufruct of one fifth of his estate, and five thousand dollars absolutely being «iual to the usufruct of ten thou- sand dollars, the widow should have the usufruct of ten thousand dol- lars, if it did not exceed one fifth of the value of the whole estate ; and if it did exceed one fifth of the value of the estate, then the widow should have the usufruct of that fifth. lb. 31. If trusts, which arise under a will, be of a character that require equitable interposition, the fact that they were created by a will cannot exclude the jurisdiction of equity. Wade v. The American Coluniza- 1 tiun Society, 7 S. & M. 663. 434 WILL. 32. If the probate court cannot grant full and adequate relief in cases of trust arising under a will, the chancery court may take juris- diction, lb. 33. R., by his will, directed that after his decease'his slaves should be called together, and such of them^as elected to go to Africa, the provisions of the will being first fully explained to them, should be sent there under the directions and superintendence of the American Colonization Society ; that such of his slaves as did not elect to go to Africa, together with allr the resi- due of his estate, except a few slaves particularly mentioned, should be sold, and the proceeds, after the payment of certain legacies and all necessary expenses, be paid over to the American Colonization So- ciety, to be appropriated first to paying the expenses of transport- ing his slaves to Africa, and se- condly to their support and main- tenance when there. The execu- tors, refused to sell any portion of the estate, or to deliver the slaves to the American Colonization So- ciety, as directed by the will, be- cause, as they contended, the trusts created by the will were in viola- tion of the policy of this state and in fraud of the statute on the sub- ject of manumission, and there- fore illegal and void ; and the Amer- ican ColoMization Society filed a bill in the superior court of chancery against the executors, to compel the execution of the trusts and to carry out the provisions of the will. The executors resisted the bill on the further ground that it related to a matter purely of administration, and cognizable only in the probate court ; held', that the trusts created by the will were legal and valid ; that the full measure of relief could only be attained in a court of equi- ty, and therefore the court of chan- cery had jurisdiction. lb. 34. Bequests made to slaves who are directed by the will to be trans- ported to Africa and remain there, are not void for want of capacity in the legatees to take ; the slaves have an inchoate right to freedom under the will, which is complete as soon as they are removed out of this state, lb. 35. Where a will directs that the slaves of the testator shall be transported to Africa, under the direction and superintepdence of the American Colonization Society,, and that the executors shall sell certain portions of the estate, and pay over the proceeds to the Colo- nization Society, to be used by them in paying the expenses of trans- porting the slaves to Africa, and for their support and maintenance when there ; the trusts are not void ■ for want of capacity in the American Colonization Society to take for such purpose, lb. 36. The American Colonization Society filed a bill against the ex- ecutors of E,., alleging that R., by his last will, directed his slaves to be sent to Africa under the super- intendence and direction of com- plainants, and that the executors should sell certain portions of his estate and pay over the proceeds to complainants, provided they would agree to appropriate the same to paying the expenses of transportr ing the slaves to Africa, and sup- porting and maintaining them when there ; that the complainants were duly and legally incorporated ; that they were willing to accept and ap- propriate the funds as provided for in the will — the object of the society, by their charter, being in accord- ance with the provisions of the will WILL. 435 and in furlherance thereof ; that by the decisions of the courts the will and provisions were fully establish- ed, and the rights of complainants to the slaves and estate, in trust, as bequeathed in the will, and for the ■purpose^ therein contained, were fully confirmed, &c. ; the execu- tors demurred to the bill because there was no averment that the complainants were an incorporated society at the time of the testator's death, and because the complain- ants had no power or authority nn- der their charter to take for the purposes and objects mentioned in the will — the chancellor disallow- ed the demurrer ; held, that the de- murrer was properly disallowed. lb. 37. It is only when the bequest or devise is too vague or indefinite for those intended to he benefited, to claim any interest under them, that the doctrine as to charities arises; definite charities are trusts, which equity will execute by virtue of its ordinary jurisdiction. lb. 38. Whether the statute 43 Elizabeth, is in force in this state, and whether the court of chancery has any jurisdiction over charities to compel their performance apart from, and independent of that stat- ute, queer e ? lb. 39. Where a testator directs, in his will, that his slaves shall be transported to Africa, under the superintendence of the American Colonization Society, and that the executors shall sell certain portions of the estate, and pay over the proceeds to the society, to be ap- plied by them to the payment of expenses incurred in transporting the slavesto Africa, and supporting them when there, both the execu- tors and society are constituted trustees ; it is the duty of the ex- ecutors to deliver the slaves to the society for the purposes of the will, and it is the duty of the soci- ety to carry out these purposes ; and if the executors will not dis- charge their duty, and interpose obstacles to the execution of the trust by the society, clearly a court of equity may enforce the perform- ance, lb. 40. Whether, if a testator, in his will, directs that his slaves shall be sent to Africa, and the will consti- tutes no trustee to take them, any remedy exists to the slave, quare ? lb. 41. The American Colonization Society is not prohibited, by its charter, from transporting slaves, directed by a will to be sent to Africa, under the superintendence of the society. lb. 42. If an incorporation be ap- pointed a trustee, to execute trusts arising under a will, which are in themselves valid in point of law, neither the heirs of the testator nor any other private person can in- quire into or contest the right of the corporation ; that could only be done by the state which granted the charter, lb. 43. By the will of R., his slaves were directed to be transported to Africa, under the direction and su- perintendence of the American Colonization Society ; the provi- sions of the will were declared valid, by the judgment of the high court of errors and appeals, and the slavee declared entitled to an inchoate right of freedom, which would be perfect by their removal from the state. The legislature, subsequently, in 1842, passed an act, giving twelve months for the removal of slaves theretofore libe- rated, and declaring the bequest of freedom void, if they were not so 436 WILL. removed. One of the executors of R. detained the slaves in this state, against their will, and against the will of the society, and of his co- executors, until the twelve months allowed hy the act of 1842 ex- pired ; before the twelve months, however, had expired, the society, after using every means in its power to comply with the requi- sitions of the act, without suit, filed a bill to compel the executor to execute the trusts created by the will j held, that the acts of the ex- ecutor constituted such a fraud, that neither he nor any one claim- ing, by virtue of his acts, acquired any right ; that the fraud of the executor placed him beyond the pale of the act of 1842, and that act did not, therefore, apply to the case. lb. 44. Whether the act of 1842, giving twelve months from and after its passage for the removal of slaves theretofore liberated, or di- rected by any last will and testa- ment to be sent beyond the limits of this state, and declaring all such bequests of freedom to be void if the slaves be not so removed, is valid and constitutional as to cases arising under will duly proved and admitted to record before its pas- sage, quare? lb. 45. Where the testator, in his will, gave the executor a discretion to sell a portion of his realty, but did not direct an absolute sale ; held, that the realty was not there- by converted into personalty ; and that a pecuniary legacy was not chargeable thereon, unless so ex- pressly provided by the testator. Montgomery v. Millikin, 1 S. & M. Ch. 495. 46. If the probate of a will has been obtained by fraud or surprise, the probate courts in this state have power, upon a proper show- ing, to vacate the probate thus ir- regularly obtained, examine the whole matter de novo, and decide accordingly. Haniberlin v. Terry, 1 S. & M. Ch. 589. 47. The probate courts in this state have, under our constitution, sole jurisdiction of the subject of wills ; a jurisdiction at least com- mensurate with that of the ecclesi- astical courts of Great Britain ; and the court of chancery has no power in this state to declare the probate of a will void, even though charged to have been procured by fraud ; such power belongs exclusively to the probate courts. lb. 48. H. and others filed their bill, stating that the will of their ances- tor, made in a fit of lunacy, had been probated by fraud, and pray- ing that the court of chancery would set the probate aside ; the will contained a clause emanci- pating the slaves which remained in the hands of the executor, and also constituted a residuary legatee, who was not made a party to the bill ; held, that though the court of chancery had no jurisdiction to set aside the probate of the will, yet that the emancipation of the slaves was a void bequest, and to that ex- tent the court would have had juris- diction, if the residuary legatee had been a party to the proceedings. lb. 49. All personal property of a testator, not disposed of, or ill dis- posed of, that, by lapse, or void be- quest for illegality, does not pass as directed by the testator, goes to the residuary legatee ; a different rule prevails as to real estate. lb. 5.0. Where a testator authorized his executors, by his will, to raise money through banks, and to give WILL. — WITNESS. — WRIT OF ERROR. 437 liens on his estate to secure such indorsers as they might be com- pelled to procure ; and the execu- tors raised money from commission merchants and gave them a deed of trust on the property, to secure them, it was held not to be such a compliance with the power as could be sustained in equity. Ford v. Russell, Freem. Ch. 42. 51. Courts of equity have juris- diction to correct mistakes or ob- vious omissions in a will, but they must be such as are demonstrable from the scope and structure of the will, or as are readily pointed out by a plain construction of its terms ; it cannot, therefore, correct the omission of the testator to at- test the will with three witnesses. Nutt V. Nutt^Fmem. Ch. 12&. 52. A will attested by two wit- nessess, though void as to the reali- ty, is valid as to the personalty. lb. 53. Whe*e. a testator by his will, devises all his real and personal estate to. the same person, and the will is void as to the realty, but good as to the personalty, and the testator 6harges the real and per- sonal estate thus devised with the payment of divers legacies, and th^ legatees would take the reality, as heirs, but for the will, if the will be void as to the realty, but valid as to the personalty, a court of equity would take jurisdiction to compel an abatement of the amount of the legacies to the extent of the value of the land, at the rate the legacies bear to the value of the whole es- tate ; or else to compel the lega- tees to the abatement, or to elect to take the legacies and give a re- lease to the land. The rule would be different if the real estate were devised from the heir and the per- sonal estate to the heir. lb. 37* WITNESS. 1. See Evidence, tit. (j.) Who competent, and what disqualifies ; as to what disqualifies a witness. 2. See New Trial, 7, 8 ; as to examining witness except in open court. Offit V. Vick, Walk. 99. WRIT OF ERROR. 1. An irregularity in an execu- tion which has issued against an administrator, without revival, on a judgment against the intestate, can- not be taken advantage of by writ of error ; that writ lying to correct errors in the judgment of the court, and not irregularities of its clerks. Hicks v. Murphy, Walk. 66. 2. The mode of reaching the ir- regularity is by motion or audita querela in the court below, unless the execution issued by order of such court, when a writ of error would lie. lb. 3. See Appearance, 1 ; as to how far want of original process after appearance and plea, can be taken advantage of by writ of error. Delahufy. Reed, Walk. 74. 4. No writ of error lies, under the law organizing the criminal court of Adams county, from that court to the supreme court. State V. Holmes, Walk. 415. 5. A release of error must be formally plead, to bar a writ of error ; it cannot be taken advantage of by motion. Vick v. Maulding, 1 How. 217. 6. Without a writ of error or an appeal, the high court will have no jurisdiction of a case, even though the record be filed and citation served. Devane v. Calching, 2 How. 884. 7. Where a citation has beea 438 WRIT OF ERROK. lost a writ of error will be dismiss- ed, if the plaintiiF therein do not have the citation renewed within fifteen days after he arrives at the knowledge of the loss of the first citation. Newell v. Briggs, 3 How. 45. 8. The indorsement on a cita- tion on a writ of error, by the clerk of the inferior court, that he acknowledged service of the cita- tion by direction of the defendant, is not a good service. Cox v. Wad- lington, 3 How. 57. 9. The writ of error bond must conform to the statutory condition, which is, that the plaintiff shall prosecute his writ to effect and pay the judgment or decree, damages, interest and costs, in case it be affirmed, and also to perform the judgment and decree of the high court ; a bond therefore condition- ed to prosecute the writ of error with effect, or failing therein, to pay and satisfy the judgment of the court with all damages, interests and costs which the high court might award in the premises, is in- sufllcient. Rogers v. Gallaway, 3 How. 58. 10. Any person interested in a judgment, or whose' interest is "aflected by it, may prosecute a writ of error ; a purchaser of land at sheriff's sale, may therefore prose- cute a writ of error from a judgment of the court setting the sale aside. Flournoy v. Smith, 3 How. 62. 11. A writ of error and citation, issuing under the act of 1837, from a circuit clerk, tested in the name of the chief justice of the state, under the seal of the circuit court is regular. Trahern v. Shackel- ford,S How. 73. Quesry ? if test- ed by circuit judge. Coleman v. Tidwell, 5 How. 12. The court will permit its amendment, if so tested. Demoss v. Camp, 5 How. 516. 12. A writ of error will not lie from a judgment on a voluntary nonsuit. Ewing v. Glidwell, 3 How. 332. 13. The statute which gives the clerks of the circuit and chancery courts power to grant citations is merely cumulative, and does not take away that power from the high court of errors and appeals ; and where that court has ordered an alias citation, upon the nonservice of the first, the propriety of the order cannot be questioned at the next term of the court after its entry. Natchez Ins. Co. v. Stan- ton, 4 How. 7. 14. After a forthcoming bond has been forfeited, no writ of error can be prosecuted ; where, there- fore, a judgment has been rendered against three persons, and two have given a forthcoming bond, none of •them can prosecute a writ of error, the judgment not being in force against the party not giving the bond. Sanders v. McDowell, 4 How. 9 ; but aliter ; if the bond has not been forfeited, the writ of error will lie. Davis v. Jordan, 5 How. 295. 15. The writ of error must be in the name of all the defendants ; if it is not it will be quashed ; if one pa'rty wishes to prosecute the writ alone, he must do so in the name of all, and if they will not unite in assigning errors, he can have a summons and severance from them. Flournoy v. Burke, 4 How. 337. Henderson v. Wilson, 4 S. & M. 732. Preira v. Silva, 4 S. & M. 735. 16. A copy of the citation left at the office of the attorney is in- sufficient service. Coleman v. Tidwell, 5 How. 12. WEIT OF ERROR. 439 17. A writ of error will lie from a judgment of the circuit court re- fusing to quash a forthcoming bond. Bank of the United Slates v. Pat- ton, 5 How. 200. 18. A writ of error in a crimi- nal case cannot be granted by the circuit court clerk, it can only issue upon the fiat of the judge, or a court of competent jurisdiction. Rockhold V. The State, 5 How. 291. 19. The plaintiff in error sued out his writ of error and citation, in March, 1840, returnable to De- cember term, 1840 ; in February, 1840, the legislature had changed the terms of the court from De- cember to July ; and the plaintiff afterwards sued out another cita- tion on the first writ of error, and had it made retijrnable' to the July term, 1840 ; the court sustained the writ of error. TFg/Zs v. Wbodtey, 5 How. 484. 20. If the original writ of error bond, be sent to the high court, it will be sufficient ; but if there were no bond, the writ of error would not be dismissed, it would affect the supersedeas only. lb. 21. Where a writ of error bond appears in the record, it will be pre- sumed to have been executed by the proper authority. lb. 22. A citation directed to the plaintiff below, or his attorneys, naming them, to appear to a writ of error to a judgment against D. et al ; without setting out the name of each defendant below, will be sufficient. Demoss v. Camp, 5 How. 516. 23. A release of errors, the con- sideration of which is forbearance to sue out the execution, is a bar to a writ of error in the case. Barnes V. Moody, 5 How. 636. 24. After the term has elapsed, at which a cause has been dismiss- ed for want of citation, it will not be reinstated at a subsequent term, on a showing of diligence in the party, and that it was the fault of the clerk that the citation did not issue. Harper v. Loviry, 6 How. 268. 25. See Bills of Exchange and Promissory notes, 105 ; maker of note having given forthcoming bond, does not bar writ of error of indorsee. 26. The dismissal of an appeal for want of jurisdiction, or irregu- larity not the fault of the party, does not bar a writ of error, not- withstanding the provision in the statute, that after an appeal, or writ of error is dismissed, another appeal or writ of error, shall not be allowed. Bull v. Harrell, 1 How. 9. 27. A writ of error will not lie at law, except from final judgment. Porter v. Delerly, 1 S. & M. 163. It will not lie, therefore, to the grant of a new trial, until after second verdict. Bank of Lexing- ton V. Taylor, 2 S. & M. 27. 28. A writ of error, to the pro- bate court, is demandable, as a matter of right, out of the high court of errors and appeals ; or it may be obtained from the clerk of the probate court, by virtue of the act of May 13, 1837. Green v. Whiting, 1 S. & M. 579. 29. A writ of error is a matter of right, and issues without any condition. Hardaway v. Biles, 1 S. & M. 657. 30. The law requiring papers to be filed by the first day of the term of the high court is not re- pealed by the act providing for a separate docket for the three dis- tricts of that court, and authorizing errors to be assigned, on the day 440 WRIT OF ERROR. the case is to be taken up ; where, therefore, a record is not filed on the first day of the term to which the writ of error is returnable, such writ will be dismissed, on the mo- tion of the defendant therein, upon his docketing the case. McGehe V. Caruthers, 2 S. & M. 443. 31. A third party, a stranger to the record, who claims the right of the appropriation to him of money made, under execution, cannot pro- secute a writ of error, from a judg- ment of the court, allotting the money to another person, still not a party to the record, but claiming as assignee also. Dougherty v. Comp- ton, 3 S. & M. 100. 32. A writ of error, issued by the clerk of the circuit court, under the act of 1837, is subject to the statute of limitations, requiring writs of error to be sued out, within three years from the rendition of the judgment. Briscoe v. Planters Bank, 3 S. & M. 423, 33. It is not a good plea, in bar of a writ of error to reverse a judgment in debt, that the plaintifi" in error has, since the judgment, assigned certain claims to the de- fendant in error, in satisfaction of the judgment ; notwithstanding such satisfaction, the judgment may be reversed ; aliter, perhaps, if it had been a real action. Gordon v. Gibls, 3 S. & M. 473. 34. A, writ of error does not lie from a decree of the circuit court, overruling a demurrer to a bill in chantoery, on its chancery side ; such decree is not a final judgment. HecMngiotlom v. Shell, 3. S. & M. 588. 35. The absence from the re- cord, of the petition for a writ of error issued by the circuit clerk, under the statute, will not cause a dismissal of the cause from the high court ; the presumption is, the clerk acted correctly. Tombigbee Railroad Co. v. Bell, 4 S. & M. 685. 36. A writ of error may issue from the circuit clerk'^s office, without a bond previously execu- ted, where no supersedeas is sought. lb. 37. Where a forthcoming bond has been quashed, and a writ of error issued to the original judg- ment, and that writ recites as par- ties to the record, as well the sure- ties in the forthcoming bond, as the parties to the original judgment ; held, that the writ of error suffi- ciently identified the record. lb. 38. Where the record contained an entry of satisfaction of the judg- ment, the propriety of which entry the plaintiff therein sought to re- vise ; held, that that entry, would not, of itself, Ipe sufficient ground to dismiss the writ of error. lb. See Probate Court, 25. A writ of error will not lie, except from final judgment of the probate court. 39. If one of two defendants in a judgment, prosecutes a writ of error, and the suit is dismissed for want of prosecution, it will be no ground for reinstating it, that the defendant who had not joined in the writ of error, was dead, when the writ was dismissed. Preira v. Silva, 4 S. & M. 735. 40. Where the plaintiff in error ordered citations, on the day the writ of error was sued out ; and, as soon as they were issued, sent them to the sherifis of the counties, where the different defendants re- sided, the writ of error will not be dismissed, if the sheriffs fail to ex- ecute them ; the plaintiff has used due diligence. Wilcox v. Mitchell, 4 S. & M. 744. WRIT OF ERROR CORAM NOBIS. 441 41. Where a writ of error is pro- secuted, it is sufficient, if the cita- tion be served on the attorney of record, in the court below. lb. 42. Though, by a general rule, a writ of error cannot be prosecu- ted after forfeiture of a forthcom- ing bond, yet, if that bond be the subject of a motion and judgment, a writ of error may be granted to reverse that. Puckett v. Graves, 6 S. & M. 384. WRIT OF ERROR CORAM NOBIS. See Damages, 3 ; for damages, on affirmance of judgment of the court below, dismissing such writ. LAW BOOKS PUBLISHED, AND FOE SALE BY LAW BOOKSELLERS AND PUBLISHERS, 112 TVASHIJfGTOSir STREET, BOSTON. In One Volume Royal Octavo.. ABBOTT ON SHIPPING. A Treatise of the Law kelatite to Merchant Ships and Sea- men. In Fire Parts. By Charles, Lord Tenterden, late Chief Justice of England. The serenth English Edition, by William Shee, Serjeant at Law. The Fifth American edition, with the Notes of Mr. Justice Story, 4nd addi- tional Annotations, by J. C. Perldns,..Esci, '''' " The fourlh American Edition of Abbott on Shipping, was fully and tltoroughly edited by the late lamented Mr. Justice Story, in 1889. Since that time a new edilfon of this work has been published in England,, enriched by the learned labors of William Shee, Serjeant at Law. The edition of Mr": Justice Story is now ont.of print, and this, together with the fact that many pases bearing upon and illustrating the law of ^hipping have been decided in America since 1S39, has induced the publishers tobring out a new edition of this work, with the addition's of Mr, Shee and with notes of the late American decisions. The editor is well aware, that it wosid have been, more desirable that Mr. Jastice Story should have reedited this book, than that it should have fallen into the present hands. . His system would have been better preserved, and his great learning would have giveii immensely greater value to the work. But this change of editors is. only one of the' many evils which we all suffer by the extinguishment of so great a ligh'tof the law, and. of general jurisprudence- "The main object of this edition has been to search out, examine, and cite all the cases which have been reported on this subject, not before cited by Mr. Justice Story and'also those that have been- decided since the publication of his edition. Many cases relating to Shipping have not fotmd their way into any book of reports • ' these, however, have been referred to in the learned publications where they are to be found. And it is hoped, and conlidenlly believed, that no cases of impor- tance touching the matters here discussed, have beeii omitted. "The actof February 26, 1845, extending Admiralty jurisdiction to cases of contracts and torts upon the lakes, and navigable waters connecting the same, has very much enlarged the necessity for works upon Shipping in the states where those lakes and waters exist. " The editor has, therefore, to make this vvork more useful in those states, referred to all the cases which he has been able to find heretofore decided, arising out of contracts and torts connected with this inland navigation. " The Index has also been enlarged to meet the new stale of the work." — Sreface to the Fifth American Edition, .' LAW BOOKS, PUBLISHED BY In Ten Volumes Octavo. AnEHICAN JtrSIST AND X.AW IdAGAZIKE, From April, 1838, to January, 1843. During which period it -was conducted and principally edited by Luther S. Gushing. These ten volumes of the American Juristj being the only ones which can now he obtained in a complete and consecutive form, constitute of themselves as entire and distinct a work as any periodical can do ; and, moreover, contain many val- uable original articles, (particularly the entire series on Contracts, by Theron Metcalf, Esq.,) and Digests of all the recent English and American Reports. The ten volumes, neatly half-bound in Law binding, are sold for $1,25 a volume — S12,50 for the set. ^ In One Volume Rayed 'Octavo. STORY ON SALES. A Treatise on the Law of Sales of Personal Property, with Illustrations from the Foreign Law. By William W. Stoiy. " There is probably no portion of law, 'which is subject to more constant changes and additions, than that relating to Sales of Personal Property. The continual in- crease of commerce, not only gives binh to new questions, but materially modi- fies established doctrines. The doctrine of implied warranty, for instance, which is one main branph of the Law of Sales, is almost entirely the growth of very late years, and can scarcely even now said to be settled. No treatise, therefore, which does not embody the result of the late decisions, can be at all adequate to the solj^ion of many embarrassing questions relating to Sales, which are daily arish^g; and inasmuch as the principal treatises on this subject, which pretend to any fulness, were published at a comparatively early date, and do not contain an exposition of the law relating thereto in its present state, a work embodying the more modern doctrines and rules would seem to he neede^d for this, if for no ''4i. other reason. ' " The principal English treatises on Sales of Personal Property, are those of Mr. Brown, Mr. Boss, Mr. Long, and iVIr. Bell,— the first being a treatise of much merit, upon the Scottish law, and the last being a small and posthumous work by Mr. Professor Bell, containing an able sketch or outline of the Scottish law, hut ,, being merely an outline. The work of Mr. Ross was printed in 1811, and its incompleleness was the reason Slated by Mr. Long for the work on the same ,, subject, published by the latter in 1821. Mr. Long's work, however, although it has been greatly enlarged and improved by the labors of Mr. Rand, is very inaccu- , rate and incomplete, and is, to say the least, no improvement on the work of Mr. '^' Ross. Mr. Rand, the learned editor, in his preface to his edition of Mr. Long's work, makes much complaint of its deficiencies, and says : ' By reason of the want of proper divisions 'of the subject in the original treatise, and of a proper classification and arrangement of the matters contained under each head, defects ■ which could not now'Se remedied, it would be much belter to write a new trea- tise, than to endeavor to supply the deficiencies oHhe original work.' In America, no work has been written on this subject, if we except the very able outline by Mr. Chancellor Kent, contained in his Comiiientaries on American Law. A full and new treatise, which shall contain an exposition of the whole body of law relating to Sales, as it now exists in America and England,' and which shall elucidate and systematize the various conflicting authorities, and establish the rules of this branch of law upon the basis of principle, seems, therefore, to be greatly needed, both for the^tudent and the practitioner."— Ecfroct/com the Fre/ace. «-!' LITTLK AND BROWN. In One Volume Octavo. ANGELL ON WATER COURSES. A Treatise on the Law of Water Courses with an Appendix, containing Forms of Declaration, etc., by Joseph K. Angell — Third Edition. Revised and containing references to many new adjudged cases. In One Volume Royal Octavo. ANOELL AND AMES ON CORFOH ATIONS. A Treatise on the Law of Private Corporations Aggregate. By Joseph K. Angell and SamuEsl Ames. Tiiird Edition, with Additions. New York, December 4, 1846. Messrs. Angell and Ames : » Gentlemen, — I owe an apology for my delay in acknowledging- your very obliging ^ letter of the 6th of October, together with tlie third edition of your excellent Treatise on Corporations. I thought it best to wait until I had leisure to read and thoroughly study it, and not to give a formal compliment before I had digested the work. And now permit me to say that I have essentially examined and made, myself master of the work, and made such corrections and improvements, though very briefly, to the second volume of my commentaries, as the very summary view of the subject in that work could pjoperly admit. In my opinion it is a very per- fect Treatise, and equal to any w^e have on any subject. I have read it ,wilh a thorough admiration of its accuracy, copiousness, research, and judgment.*! The order and arrangement are excellent. Indeed, it supersedes every Treatise on the subject, that ever has been executed, and I congratulate you on the distinguished ability, learning, and success, which mark the executidn of the Treatise. It must be a standard book, and in every lawyer's library^:!)! the United States, and though _ you have not professed to give " illustrations from the civil and the foreign law, " you have done all that you ought to have done, and it contains views of English . as well as American Jurisprudence, that must render the work very valuable to f an English lawyer. I am, gentlemen, with entire respect, Your most obliged servant, i&y* -y James Kent. In One Volume Royal Octavo. ANGEIiXi ON XiIMITATIONS. NEW ENLARaED EDITION. A Treatise on the Limitations of Actions at law and Suits in Equity and Admiralty, with an Appendix containing th'e American and English Statutes of Limitations, and embracing the latest Acts on the Subject. By J. K. Angell. Second Edition, revised, corrected, and much enlarged. " Lord Brougham begs Mr. A. would kindly communicate to Mr. Angtell his very grateful sense of the favor done him by the 'valuable present of Mr. A.'s work. Lord B. has already consulted it, and found it to be by much the best treatise on this very , important subject." — Lord Brougham''s Note to^Mr. Arnold. LAW BOOKS, PUBLISHED BY In One Volume Quarto. THE LAWYER'S COBIMON-PLACE BOOK, By the late Judge Howe, with large Additions to the Index, by Mr. Mai-vin, Librarian of the Dane Law Library, Cambridgte. jBs Four Volumes Octavo. BROWN'S REPORTS Of Cases iii the High Court of Chancery, during the time of Lord Chancellor Thurlow, and of the several Commissioners of the Great Seal and Lord Chan- cellor Loughborough, from 1778 to 1794, with the annotations of Mr. Belt and Mr. Eden ; edited by J. C. Perkins, Esq. Cambridge, July 5, 1S44. Messrs. Little & Brown, Of the value of the Reports of Mr. Brown, comprising, as they do, the decisions of that great Chancellor, Lord Thurlow, it is saperfiuous for me to speak. From my knowledge of Mr. Perkins as a well read and exact lawyer, eminently fitted for the work, I anticipated from the first announcement of his design to furnish notes for this edition, and lo superintend its publication, a rich contribution to the stock of our Equity Jurisprudence. I have examined his notes with some care, and find my cxpecialions more than realized. <( His notes are practical; and in neatness, comprehension, and accuracy, are not surpassed by any editorial notes which I have seen. No member of the profession who practices in Chancery, ought lo be without this edition. The mechanical execution of the work will do you no dis- credit in England. ^ Very truly, your much obliged and obedient servant, Simon Geeenleaf. ' The cases here reported are of great practical value, a large part of them lying at the very foundation of Chancery. Their importance is attested by the fact that Brown's Reports are oftener' cited by writers of authority than any other series of Reports in Chancery. Until the present time, however, no edition of them has appeared in the United Slates ; nor do we believe that there is any edition of any Repons that has ever been published either in England or America, which is recommended by such usefal and ample editorial labors. The notes of Mr. Belt have been retained, and those of Mr. Edei^so far as they could be made supplementary to these, have been added. Thus the separate laborsV these editors are accumulated on the same page, impartmg of ilself, to the present edition, a higher value than Jt • belongs to either of the English editions. ... The notes of the present edition are strictly practical. They are calculated to add essentially to the value of the Reports, as a book of reference in courts, and of daily use in the profession."— ioM) Reporter, # In One Volume Octavo. CURTIS'S RIGHTS AND DUTIES OP MERCHANT SEAMEN. A Treatise on the Rights and Duties of Merchant Seamen, according to the General Mariame Law and the Statutes of the United States ; by George » Ticknor Curtis. ' .gj^ LTfTLE AND BROWN. In Three Volumes Octavo. DANIELL'S CHANCEKY PRACTICE. Headlam's Edition, with Perkins's Notes. 'Pleading and Practice of the High Court of Chancery, by Edmund Eobert Daniel, F. R. S., Commissioner of the Court of Bankruptcy. Second English Edition. With considerable ■ Alterations and Additions, adapting the text to the last General Orders, and the most recent Decisions of the Court. By Thomas Emerson Headlam, M. A., Barrister at Law. Eirst American Edition. To which are added several entirely new Chapters, and copious. Notes, adapting the work to American Practice in Chancery. By J. C. Perkins, Esq. ^ Cambeidge, Octobeb 20, 1846. Messrs. Little & Brown : Gentlemen — Agreeably to your request, I hav e compared your recent edition of Daniell's Chancery Practice, by Mr. Perkins, with the one latel y published at Harrisburg. The latter is simply a reprint of the first London edition, printed in 1837. It is well known that Mr. Daniell left his own work incomplete, having for reasons staled in his last publication, determined to abandon his original design. It was then taken up by Mr. Headlam, who undertook, in a second edition, to complete what the author originally intended, and to revise the whole work and adapt it lo the new Orders in Chancery. This labor he accomplished in the beginning of the present year, in a very satisfactory manner, by many additions to the body of the text, to- gether with the later decisions, by re-writing several of the chapters, and adding five new ones, on new subjects ; thus greatly enhancing the value of the work. Since the publication ol the first edition, material changes have been made in the prac- tice in Chancery in England, by the new Orders made m 1641, 1842, and 1845. Our own practice, too, in the Unitei^ States Courts, has been essentially varied by the Orders of January, 1842, many of which were copied from the English Orders of 1841 ; while some of the later English Orders are substantially the same with ours of 1S42, and thus, the present practice, in the courts of both nations,' has become as ■ . nearly similar as their circumstances will conveniently admit. , J^ Your edition by Mr. Perkins, printed from that by Mr. Headlam, furnishes all that can be desired in this branch of the law ; giving us a treatise written and revised with great ability, and brought down to the present state of the practice. Wherever any portion of the original work was omitted by Mr. Headlam, so much of it as is still applicable to our practice Mr. Perkins'has very properly restored ; enriching the whole with many valuable notes,' with references to the American decisions, and the addition of three new and ably written chapters, on Bills of Review,' on Cross Bills, and on Bills of Interpleader. This work I consider by far the most complete treatise extant on Chancery Practice. Very respectfully and truly yours, i^ Simon Gbeenleaf. '# In One Volume Octavo. DAVIS'S JUSTICE. A Practical Treatise upon the Authority and Duty qf Justices of the Peace in Criminal Prosecutions. To which are now added precedents of Declarations and Pleadings in Civil Actions, by Daniel Davis — Second Edition. #■ PUBLISHED BY In Two Volumes Octavo. MAULE AND SELWYN'S REPORTS. Reports of Cases in King's Bench, containing cases of Hilary, Easter, and Trinity Terms, 1813 ; Michaelmas, Hilary, and -Easter Terms, 1813-14, and Trin., Mich., and Hil. Terms, 1814-15. In the 53d, and 54th, and 55th years of George Third. Edited by Theron Metcalf. " These are very valuable Reports of the Common Law in the King's Bench in Eng- land, embracing several years of the period daring which those great judges, Lord Ellenborough and Sir John Bailey, were on the Bench, and forming a very important link in the series of Common Law Reports. The six volumes have been condensed into two, with great skill and correctness, by Theron Metcalf, Esq., and form a very proper companiort to the English Common Law Rffpiyrts^ published at Philadelphia." In One Volume Octavo. HOBART'S REPORTS. The reports of that Reverend and Learned Judge, the Right Honorable Sir Henry Hobart, Knight and Baronet, Lord Chief-Justice of his Majesty's Court of Common Pleas, and Chancellor to both their Highnesses Heniy and Charles, Prince of Wales. First American, from the fifth English edition, ■with "Notes and References to prior and subsequent Decisions. By John M. Williams, one of the Justices of the Court of Common Pleas of Massachu- setts. " The established reputation of Judge Williams, the American editor of this edition of Hobarl's Reports, gives in advance, the assurance that his notes will be found to contain a mass of useful legal learning. He is known to the profession as a learned, laborious, and able lawyer. In all these respects his notes sustain his well-earned reputation. They show much research, in collating numerous cases, American and English, and a very thorough examination of the cases reprinted. "Where oases decided have been overruled by after decisions, or their authority •^ shaken, the information is given in the notes and the grounds of the after decisions, with references to the several cases, briefly aftd intelligibly stated. " The abstracts which precede the oases, are also the work of the American editor, and are made with commendable brevity. They are not, as is the case in some mod- ern reports, swelled to a size almost as unwieldy as that of the cases, of which they purport to be abstracts ;whtle>they present- the principles decideB .i>y the several cases briefly, they also do it fully and clearly. Judge Williams is also en- titled to commendation, for generally confining himself to an examination of the principles decided by each case', collating the authorities applicable to it, and thus avoiding, in addition to the increase of the bulk of his volume, a coinplexity and .i, intricacy that would almost be the necessary consequence of launching forth into prolix discussi»ns, where he happened to difier, in opinion, as to the legal doctrines advanced in the text, or in analogous cases. " — American Jurist. In One Volwme Octavo. HOWARD'S SUPREME COURT REPORTS. Reports of Cases argued and determined in the Supreme Court of the United States, January Term, 1846. By Benjamin C. Howard, Counsellor at Law and Reporter of the Decisions of the Supreme Comt of the United States. Vol- ume IV. LITTLE AND BROWN. In One Volume 12mo. OURTIS'S AMERICAN CONVEYANCER, Containing a large variety of Legal Forms and Instruments, adapted to Popular wants and Professional Use througli the United States. New Edition, enlarged. v ADVERTISEMENT TO THE NEW EDITION. The new edition of this work, in addition to a great variety of forms of instruments in common use, contains the Insolvent Law, and all the Acts passed in addition thereto, and a complete series of the most approvett forms to be used in the pro- ceedings in Insolvency, together with a full Analytical Digest of the Decisions of the Supreme Judicial Court bearing upon the several Acts. In One Volume Soyal Octavo. V MINOT'S DIGEST Of all the Reports of the Supreme Judicial Court of Massachusetts. Being a Digest of the Decisions reported in the Seventeen Volumes of Massachusetts r Reports ; the twenty-four volumes of Pickering's Reports ; and the first Pour Volumes of Metcalf 's Reports. The Insertion of the Fourth Volume of Metcalf's Reports in an Appendix, makes this Digest extend over all the Decisions of the Supreme Judicial Court, ■which have as yet been published. " MinoVs Digest. This is a digesi, in one volume, of all the Massachusetts reports, down to the present time ; that is, of seventeen volumes of Massachusetts, tw^enly- four of Pickering, and four of Metcalf's Reports. I would call the attention of the profession to it, ae the complelegt specimen of a digest that has yet .appeared. The table of cases at lh.e beginning refers both to the page of the* Rep9rts, and, of the Digest, and there is a very full index at the end. But the greatest merit will be found in the clearness and brevity with whiph the points are slated. Mr. Minot , , appears to have, examined each case for himself, and extracted the very essence of ' it. And although a digest is never regarded as authority, with the exception of Comyn, my examination of this induces the belief that there would be Httle danger in making this another exception," — Judge WcUker, in Western Law Journal. In Two Volvmes Octavo. GREENLEAP ON EVIDENCE. A Treatise on the Law of Evidence, by Simon Greenleaf, LL.D. Third Edition. • " Few American law books have been aspopulary in a just sense of the tenUj as the first volume of Mr. Greenleaf 's Treatise on Evidence ; and certainly no single work in our profession has won for its author so much distinction, both at home and abroad. The second volume, now published, does no discredit to its companion, and is equally remarkable for those capital requisites of a good law book — clear and concise statement of the points, a crystal purity of style, and a careful exclu- sion of all discussions, suggestions, and insinuations which have no immediate reference to the matter in hand, and which serve to cover up the law." — Law Reporter. LAW BOOKS, PUBLISHED BY In Two Volwnes Octavo. JARMAN ON WILLS. * A Treatise on Wills, 'with a Copious Dissertation on the Construction of Devises, by T. Jarman, Esq., with Notes and References to American Law, by J. C. Perkins, Esq. Cambridge, December 13, 1845. Messrs. Little 8c Brown, — I have long been acquainted with the great merit of Mr. Jarman as a legal author, and regard this treatise as one of the highest order. An American Lawyer cannot well dispense with it, even in the English edition ; but the notes of Mr. Perkins, who has selected the American cases with his usual skill and discrimination, have rendered the work doubly valuable to the profession. With much respect, Your obliged and obedient servant, S. Greenleaf. In One Volvime Octavo. GREENLEAP'S TESTIMONY OP THE EVANGELISTS. An examination of the Testimony of the Four Evangelists, by the Rules of Evidence administered in Courts of Justice "With an Account of the Trial of Jesus. By Simon Greenleaf, LL.D., Eoyall Professor of Law in Harvard University. The design of this work, as its title imports, is to bring the narratives of these witnesses to the tests usually applied to the evidence of other transactions in Courts of Law, as well documentary as oral, in order to ascertain what degree of credit they would be entitled to receive in human tribunals. The principles of the Law of Evidence applicable to such subjects, are stated in a Preliminary Discourse, in which also the characters and situation of the Evangelists, their motives of conduct, and the nature and probability of their narratives and assertions are ex- amined. The Four Gospels are exhibited in parallel columns, arranged after the order of Archbishop Newcome's Harmony, as recently corrected and published by Professor Robinson. In the appendix is contained a legal account of the two Trials of Jesus, before the Sanhedrim and Pilate ; and a translation of the Jewish account of those transactions, given] by M. Salvador, a learned Jew, in his Histoire des Institutions de Moise et du Peuple Hibreu. The work is inscribed to the members of the legal profession ; but it will be found equally interesting to clergymen, and to all others who may be disposed to examine the subject. In Tu)o Volumes Octavo. GALLISON'S CIRCUIT COURT REPORTS. Reports of Cases Argued and Determined in the Circuit Court of the UnWd States for the First Circuit, by John Gallison. A new edition with Notes. LITTLE AND BEOWN. In Fime Volumes Octavo. mASON'S REPORTS. Keports of Cases in the Circuit Court of the ITnited States for the First Circuit, from 1816 to 1830. By William P. Mason. " These Keporls comprise the Decisions of Mr. Justice Story, on the First Circuit of the United States, and follow in order after Mr. Gallison's Reports, The Decisions relate lo a great variety of subjects — Constitutional, Admiralty, Personal and Real Law, and Chancery, and are characterized by the profound learning, acute- ness, and thoroughness of research, which are such eminent traits of their author. They will bear a favorable comparison, in point of learning and practical utility, with the best volumes of the English Reports. " In Three Volumes Octavo. SUMNER'S REPORTS. Reports of "Cases Argued and Determined in the Circuit Court of the United States for the First Circuit. By Charles Sumner. These volumes contain the Decisions of Mr. Justice Story, on his Circuit,' during three years, and form a continuation to the series of Gallison and Mason, The Decisions^in tie present volumes relate particularly to questions of Equity and Admiralty, and are of great practical value. / In Three Volumes Octavo. STORY'S REPORTS. Reports of Cases Argued and Determined in the Circuit Court of the United States for the First Circuit." By William W. Story. These volumes contain the Decisions of Mr. Justice Story, on his Circuit, during the last three years, and form a continuation to the series of Gallison, Mason, and Sumner. In Seventeen Volumes Octavo. MASSACHUSETTS REPORTS. Tyng's Reports of Cases in the Supreme Judicial Court of Massachusetts, from 1804 to 1822. Vol, I. by Ephraim Williams. , " These Reports embrace the Decisions of the Supreme Court of Massachusetts from the time in which they iirst began to be published until Mr. Pickering commenced his labors as Reporter. During a portion of this period Chief-Justice Parsons, ■whose character for learning and ability has been so widely diffused, presided on the bench. No reports have sustained a higher reputation throughout the cotintry than these, or have been more extensively cited. The greater part of the present volumes have been stereotyped, and have been enriched by the learned Annota- tions of Benjamin Rand, Esq., of the Boston Bar, " 10 LAW BOOKS, PUBLISHED BY In Twenly-fimr Volumes Octavo, PICKERING'S REPORTS. Reports of Cases in the Supreme Judicial Court of Massachusetts, from 1822 to 1841. By Octavius Pickering. " These Reports form a continuation of tlie Massachusetts Reports. The variety of cases considered, and the able judgments of the Court, give them a high practical value for the profession. Several of the volumes have passed to a second edition, and are enriched by learned Annotations by J. C. Perkins, Esq., of the Essex Bar. " Mr. Pickering resigned iheioffice of Reporter in 1839, and was succeeded by T. Metcalf, Esq., who commenced his labors with the March Term, 1840. " In Nine Volumes Octavo. METCALP'S REPORTS. Reports of Cases Argued and Determined in the Supreme Judicial Court of Mlssachusetts. By Theron Metcalf. * These volumes merit a public notice, and will well repay a critical examination. They contain the decisions of a high judicial tribunal of the Various questions which spring up in every day life, from the conduct and dealings of a large, intel- ligent, enterprising, commercial, raanufact«ring, and agricultural community. They define the limits of,legal right and legal hability. They contain accounts of prosperous enterprise, of ruinous adventure, of domestic feuds, and of the miseries of crime. Theypresent the people, the bar, and the bench, as they think, and speak, and act, in the drama of life. The Reporter, Mr. Metcalf, is one of the soundest, most accurate, and learned lawyers of our country. His taste, habits, ajid • powers of mind are peculiarly adapted to legal investigation and analysis. He belongs to a class of lawyers, whose number at the present day, it is a matter of regret is but small, and which seems to be in danger of becommg extinct. They are men who deal with principles, who love the law as a science, who devote themselves with zeal and in earnest to its study j who seek not the shouts of sense- less popular applause, but are content with the respect and esteem, which are surely, but slowly and noiselessly earned by excellence in the profession of their choice." — Xaw Reporter. In One Volume Octavo. t POTHIER ON THE CONTRACT OP SALE. Treatise on the Contract of Sale. By E. J. Pothier. Translated from the Prench, hy L. S. Cushing. " The translator hopes that his work will be found to be exact ; he very early, in his professional life, began the study of these writings ; he has devoted to it some por- tion of the leisure hours of many years ; and he has aimed, in the following pages, to furnish his professional brethren with a translation, which shall not be unworthy of their approbation or of the fame of the author. '? — Frefcue. LITTLE AND BROWN. 11 In Tw&nty Volumes Octavo. VESEY'S REPORTS. Reports of Cases Argued and Determined in the High Court of Chancery, from the year 1789 to 1817, with a Digested Index. By I'rancis Yesey, Jr., Esq., of Lincoln's Inn, Barrister-at-Law. From the last London edition, with the Notes of PrancisiVesey, Jr., Esq., and the Extensive Annotations of John E. Hovenden, Esq., of Gray's Inn, Barrister-at-Law. The whole edited, with Notes and References to American Law and subsequent English Decisions, by Charles Sumner and J. C. Perkins, Esqrs, Cambridge, Nov. 4, 1843. Messrs. Little & Brown: Gentlemen, — The reports of Mr. Vesey, Jr., in twenty volumes, are of the highest authority, and constitute one of the standard works in Equity Jurisprudence. They contain the decisions of two of the most eminent judges that have sitten in the court of chancery, during a very considerable portion of their judicial lives ; I mean Lord Bldon and Sir "William Grant, whom it is impossible to name but with the highest reverence and respect for their learning and ability. A new edition, such as you propose, with references to the latest English decisions, and to those in the American courts, would greatly enhance the practical utility of the work ; and the price at which you propose to publish the volumes, is certainly very cheap, and the work will, I feel confideul, receive a large patronage from the profession^ I would recommend in an especial manner to you the propriety of republishing in the same manner the later Reports containing the decisions of Lord Eldon— suchas Vesey and Beames's Reports, Merivale's Reports, Jacob and Walker, Russell, &c., &c. I am very truly and respectfully yours, Joseph Stort. Cambridge, Oct- S5th, 1843, Messrs. Little & Brown : Gentlemen, — Your proposal to reprint the Reports of Mr. Vesey, the younger, can need no commendation of mine, since they are so well known to the profession, and are so highly esteemed for their accuracy and fulness of learning, in the re- ported judgments of some of the greatest minds which have shed lustre, in any age, on the administration of equity. I have no doubt that the profession will liberally patronize the undertaking. Respectfully, your obedient servant, Simon Greenleaf. In One Volume Octavo. LONG ON SAXiBS. Treatise on the Law relative to the Sales of Personal Property. "With ad- ditions by Benjamin Kand, Esq., Counsellor at law. 2nd American, from the last London edition. " The present volume contains ample evidence of the editor's learning and research. He is evidently thoroughly acquainted with everything relating to the subject of sales, which is of authority in the courts of England or America, and his copious additions have greatly increased the value of the original work. " — Am. Jurist. 12 PUBLISHED BY In One Volume Octavo. POINTS IN THE LAW OP BISCOVERY. By James Wigram, Esq., First American, from the Second London edition, with Notes and References to American Cases, by a Member of the Boston Bar. This work contains a full examination of the Law respecting the liability of parties, their solicitors and agents, to produce papers in their possession during the pro- gress of a cause — a question of daily occurrence, ajid of great practical utility. ■ Cambridge, Oct. 15, 1841. Messrs. Little and Bkowh ; Gentlemen, — Mr. Wigram's work on " Points in the Law of Discovery " is one of the most valuable contributions to juridical literature which has appeared for several years. It is learned, acute, and discriminating, and discusses every topic with accuracy and fulness. 1 am, &c., Joseph Story. In One Volume Octavo. IflODERN PROBATE OP WILLS. •# A new American work, containing an analysis of the Law of Probate as settled by the English and American Decisions. By George W. Bead, Esq., Counsellor at Law. ( This work embraces every subject connected with the execution and proof of Wills. Such as The Form of the Instrument ; Imperfect Wills ; Memoranda for Wills j The Testable Age and Testable Capacity ; Wills of Infants ; of Feme Coverts, , Captives, Feloiis ; Wills of Blind Men, Mariners, Soldiers, &c. ; Proof of Foreign Wills ; The lex domicilii ; The lex rei silas ; Lost and Destroyed Wills j Revok- ino- Probates ; Evidence in Testamentary Causes, and the whole subject of the Execution and Attestation of Wills, elaborately discussed. Until Ihepublication of the condensed English Ecclesiastical Reports, the law of pro- iste of testamentary Instruments was a " sealed book " to the profession in the United States j and owing, perhaps, to their cost, and to the want of a more gener- al acquaintance with the intrinsic merit of these reports, they have obtained, as yet, but a limited circulation. And although they contain many valuable decisions on the law of Probate, they are mixed up with other matter, some of which is of but little use to the American lawyer. It is strictly true, that the profession in the United Stales, are entirely without a work, that even professes to be exclusively devoted to so important a branch of our Jurisprudence, as the Proof of Wills. In the work now offered to the public, the author has endeavored to present a full expo- sition of the law of Probate, as collected from all the English and American de- cisions ; and to save the student the herculean labor of wading through the English Reports, and the six hundred volumes of State Reports, in order to anive at a satisfactory opinion upon a difficult question of Probate. Nearly every state in the Union has, substantially, (and most of them, literally,) adopted the Statute of Frauds, Ch. 2, in relation to the execuUon and revocation of Wills. The decisions of all the states, therefore, on this subject may be regarded as a commen- tary on the same text, and upon no branch of legal learning have the various stale decisions been more hamonious and accordant than on this. The work is adapted to the wants of the profession in every state in the Union. LITTLE AND BROWN. 13 In Three Volumes^ Royal Octavo. THE UNITED STATES DIGEST. Digest of the Decisions of the Courts of Common Law and Admiralty in the United States. Vol. 1 by Theron Metcalf and J. C. Perkins. Vol. 2 by George T. Curtis. Vol. 3 by George T. Curtis. ^ . This digest embraces the whole of the common law reports in the United States, both in the slate and federal courts. It is believed by the publishers, that in the pian^ pursued by Mr. Curtis, no ease under any of the titles can have been oraittea|P and the whole work presents to the profession a body of law never before colletfted in this country. The volumes close, in each series of reports, where the first vol- ume left them. A supplement will soon be published, bringing the Reports down to January, 1847; after which, we shall publish an Annual Digest of all the com- mon law and Admiralty cases in the Union, for each year. " We think it not extravagant to say, that this work will be to the United States what Comyn's Digest has been and is lo England." — Jurist, " The first volume of this great work appeared in 1840, and was prepared by Theron ^ Metcalf and Jona. C. Perkins, Esqrs. These gentlemen subsequently withdrew from the arduous labor which they had assumed, and the Digest has been delayed by'several causes until the present time. It is now under the charge of George T. Curtis, Esqr, ; and the third and last volume being in press, it Is proba:bIe that the whole work will be ready for the profession in a short time. It is hardly proper to enter upon a carefal examination of this Digest until it is all published. In our notice of the first volume, (3 Law Reporter, 35,) we stated that it was beyond all question, the best work of the kind ever published in this country, and would be a complete substitute for many American reports. In the slight examination that we have been able to give the volume now before us, we see no reason to alter the opinion then expressed ; and we regard the high character of those who are now connected with the work, as editor and publishers, as a sufficient guar- anty, that a work so long expected will not disappoint the expectations of the profession." — Law Reporter. In One Volvm& Octavo. HOWE'S PRACTICE. The Practice in Civil Actions and Proceedings at Law in Massachusetts. By Samuel Howe. " To the students and the younger part of the profession this work will be very accepta- ble. And the older members, though enured by the business of their lives to the forms and points of practice, will, nevertheless, find it, not unfrequently, a useful assistant, since the memory is often treacherous, and no man=s experience is so universal, as not sometimes to meet cases, such as he has never before handled. As a first attempt to settle our practice — to present it in an intelligible and system- atic shape— : to consolidate, as it were, and arrange the numerous regulations scattered up and down our statute book, interlacing and illustrating ihem by the decisions in our reports, and by the unrecorded customs and habits of the pro- fession and of the courts, it is to be regarded with especial favor." — Am. Jurist. 14 LAW BOOKS, PUBLISHED BY ^m. JWv* Sttstite Stots^s WiovUu. In One Volume Royal Octavo A # COMMENTARIES ON THE LAW OP BAILMENTS, With Illustrations from the Civil and the Foreign Law. By Joseph Story, LL.D., one of the Justices of the Supreme Court of the United States, and Dane Professor of Law in Harvard University. Fourth edition: revised, corrected, and enlarged. " Since the publication of the last edition of the present work, the author has ceased from all earthly labors. Before his death, however, he had carefully revised and prepared it for the press ; and from his private copy, containing his manuscript notes, the present edition is principally prepared. In addition thereto, the editor has found little to do except to correct a few verbal errors, and to add such other and later cases pertaining to the subject matter as have come within his knowl- edge. " — Advertistvunt to the present edition. In Three Volumes Octaxo. COMMENTARIES ON THE ' CONSTITUTION Of the United States. With a preliminary review of the Constitutional His- tory of the Colonies and States, before the adoption of the Constitution. By Joseph Story, LL.D. In One Volume Eoyal Octavo. COMMENTARIES ON THE CONSTITUTION Of the United States. With a preliminary review of the Constitutional His- tory of the Colonies and States, before the adoption of the Constitution. By Joseph Story, LL.D. Abridged by the author. In One Volume Royal Octavo. COMMENTARIES ON THE CONFLICT OP LAWS, Toreign and Domestic, in regard to Contracts, Eights, and Remedies, and especially in regard to Marriages, Divorces, WiUs, Successions, and Judgments, by Joseph Story, LL.D. Third edition, revised, corrected, and greatly en- larged. - LITTLE AND BROWN. 15 /n Two Volumet Royal Octavo. COMMENTARIES ON EQUITY JURISFHUBENCE As Administered in England and America. By Joseph Story, LL.D. Fourth edition, revised, corrected, and enlarged. *' The present edition of tjie Commentaries on Equity Jurisprudence was prepared for the press by the late author, and will be found to be considerably enlarged from the former editions, both in the text and notes. His thorough revision and correction of the whole work has left little else to be done than to add such illustrations and citations as have grown out of the very recent cases." — Advertisement to the Fourth Edition. ff iJi One Vbbime Royal Octavo. COMMENTARIES ON THE LAW OP AGENCY As a Branch of Commercial and Maritime Jurisprudence, with Occasional Illustrations from the Civil and Foreign Law. By Joseph Story, LL.Dj Third Edition. Revised, corrected and enlarged. In One Volume Royal Octavo. COMMENTARIES ON THE LAW OP PARTNERSHIP, As a Branch of Commercial and Maritime Jurisprudence, with occasional Illustrations from the Civil and Foreign Law. By Joseph Story, LL.D., one of the Justices of the Supreme Court of the United States, and Dane Professor of Law in Harvard University. Second Edition. , " The present edition of the Commentaries on Partnership was prepared principally from the private copy of the late author, and will be perceived to have been consid- erably enlarged by him from the previous edition. To his manuscript notes the editor has merely added such other notes and citations as have gro-wn out of the more recent cases." — Pre/ace to the Second Edition. In One Volume Royal Octavo. COMMENTARIES ON THE LAW OP BILLS OP EXCHANGE, Foreign and Inland, as administered in England and America; with occa- sional Illustrations from the Commercial Law of Nations of Continental Europe. By Joseph Story, LL.D. Second Edition. The present edition will be found to be considerably enlarged from the last. The Editor has however, made no other change in the text than to insert the manuscript alter- ations and additions left by the Author, and to cite in the notes such new cases, as have fallen within his observation. — Adveriisemera to the Second Edition. 16 LAW BOOKS, PUBLISHED BY In One Volume Eoyal Octavo. COMMENTARIES ON EQUITY PLEADINGS And the Incidents thereto, according to the Practice of the Courts of Equity of England and America. By Joseph Story, LL.D., Dane Professor of Law in Harvard University. Third Edition, revised, corrected, and enlarged. In One Volume Eoyal Octavo. COMMENTARIES ON THE LAW OP PROMISSORY NOTES, And Guaranties of Notes, and Checks on Banks and Bankers, with occa- sional illusti-ations from the Commercial Law of the Nations of Continental Europe. By Joseph Story, LL.D. In One Volume Octavo, CURTIS'S ADMIRALTY DIGEST. A Digest of Cases adjudicated in the Courts of Admiralty of the United States, and in the High CourtofA)imiralty in England, together with some topics from the works of Sir Leoline Jenkins, Kt., Judge of the Admiralty in the reign of Charles n. — by George Ticknor Curtis. " A work, which shall embrace a fall and accurate review of all the doctrines of the author- ities upon the varidus subjects that come under the cognizance of the Admiralty Courts, must be of great value to every lawyer who is engaged in practice in any of our seaports. But it is equally important to underwriters, to ship-owners, and ship- masters, and shippers of goods, as it may aSbrd them prompt information in their ordinary business.— Of course the value of such a book must essentially depend upon its fulness, accuracy, clearness of statement, and practical convenience of arrangement. In our judgment, Mr. Curtis's work in all these respects, deserves the praise of being not merely good, but excellent. We cannot doubt indeed, but that it will meet with fuU'success. It would be an undeserved reproach to the pro- fession, to suppose, that so useful a compendium should not at once find its appro- priate place on the shelves of every commercial lawyer who aspires to own a library." In One Volume Octavo. STEVENS &/ BENECKE ON INSURANCE. Treatises on Average and Adjustments of Losses in Marine Insurance, by Stevens and Benecke, with Notes by WiUard Phillips. LITTLE AND BROWN. 17 In One Volume Octavo. BEFORT OF THE TBIAL OF AENBR ROGERS, JR., For the murder of Charles Lincoln, Jr. comprising the Charge of Chief-Justice Shaw, and the full arguments of Counsel. With a Complete Report of this remarkable Case. By George T. Bigelow, and George Bemis, Esqrs. " The interest taken in the subject of insanity as a defence to criminal prosecutions, it is thought, renders the present trial sufficiently important to deserve a full and ac- curate report. Accordingly the best exertions (in the absence of a short hand ver- batim report,) have been made, to exhibit a fall development of the case in its legal and medico-scientific bearings. The testimony, as afforded by our own copious minutes of (he trial, has been carefully compared with the notes taken by the Chief Justice, (obligingly afforded for the purpose) and a statement of the law as pro- pounded by the Bench, has been obtained from the same source. The Slate's Attorney has also favored us with his opening and closing remarks, so far as he could write them out from memory after the trial. As a case involving the issue of feigned or real insanity, we believe the present the most interesting on record, cer- tainly in English or American Jurisprudence. As one of transient duration, also, (supposing nothing further is heard of it,) it.deserves, perhaps, to be noted for the benefit of medical science." — Extract from the J^eface. In Two Volumes Octavo. PHILLIPS ON INSURANCE. A Treatise on the Law of Insurance, by Willard Phillips. Second Edition. In One Volmne Octavo, PHILLIPS ON PATENTS. The Law of Patents for Inventions, including the Eemedies and Legal Pro- ceedings in relation to Patent Eights, by Willard Phillips. In One Volwne 12mo. THE INVENTOR'S GUIDE. Comprising the Kules, Perms, and Proceedings, for securing Patent Eights, by Willard Phillips. 18 LAW BOOKS, PUBLISHED BY In One Volvime Octavo. HEPORT OP THE TRIAL OP JAMES H. PECK, Judge of the United States District Court for the District of Missouri, before the Senate of the United States, on an impeachment preferred by the House of EepresSyitatives against him for high misdemeanors in office — by Arthur J. Stansbury. " This volume contains a great amount of learning in regard to contempts of court, libels and impeachments, subjects upon which the counsel 0]i both sides exhibit proofs of very diligent research. It vfill be a valuable repository of authority and argument, infutureoases, in which the right of courts to punish contempts may be brought in question." In Eight Volumes Soyal Octavo. UNITED STATES STATUTES AT LARGE. Published by Direction and under the Patronage of Congress. Our edition of the Laws is now completed, in 8 vols., containing as follows. Vols. 1-5. The Public Statutes at Lakge. Vol. 6. The Private Statutes at Lakge. " 7. The Teeaties with Indian Teibes. " 8. The Treaties with Foreign Powers. Volume 8 also contains the following Tables, &c. Tables. — No. 1. Showing the relative Chaptering in this edition, and ill the edition of Mr. Justice Story, continued by Shars- wdod,andin.the^editiQn'of.BJu3reii and.Dtianej contin- ued by the" Laws of the United; States. " No. 2. Comprising tlie Actsof Congress from 1789 to 1845, inclusive, relating to theJuDiciAET, No. 3. Comprising the Acts of Congress from 1789 to 1845 inclusive, relating to Imports and Tonnage. No. 4. Comprising the Acts of Congress from 1789 to 1845, inclusive, relating to the Public Lands. No. 5. Comprising the Acts of Congress from 1789 to 1845, inclusive, relating to the Post Office. A General Index of the Matters in the Pive Volumes of the Public Laws; and the Volumes of the Private Laws, the Treaties between the United States and the Indian Tribes, and the Treaties and Conventions be- tween the United States and Poreign Nations. General Index to the Public Laws, prepared by Mr. Minot, especially for the Profession. We sell the work at $4.00 a volume, bound in substantial leather binding — or separately to meet the wants of the public, the profession and official gentle- men as follows : LITTLE AND BROWN. 19 The Public Statutes at Large with General Index, 5 vols. $20.00 The Private " " " 1 vol. . . . . . . 4.00 The Treaties with the Indian Tribes, 1 vol. .... 4.00 The Treaties with Foreign Powers, 1 vol 4.00 Complete Sets, in 8 vols 32.00 We are allowed to add the following high testimoniala to the character of bur edition of the Public Statutes, from the Committee which originally drafted.ajid reported the plan of the edition to Congress, and froni the Hon. Judge Mason, Attorney- Genbral of the United States, under whose superintendence, by direction of Congress, it has been published. Congress has also testified its high sense of the merits of the edition by sanctioning it, by a special act, which is inserted below. To the Hon. J. Y. Mason, At'tomey- General of the United States. Sir : — The undersigned, the Joint Committee of the last Congress upon the Library, having had an opportunity of examining the first volume of the new edition of the Laws and Treaties of the United Stales, published by Messrs. Little &. Brown, under the resolve of the last session, passed in pursuance of the report of that committee, have thought it might not be improper to express an opinion upon this specimen of the work. And we have great satisfaction in saying, thai it most • fully answers the expectations with which we recommended, and with which, as we think, Congress invited the publication of this edition. It conforms substantially to the plan which the resolve instructed, improving upon it where it differs al all ; is executed with great mechanical neatness ; and if the whole shall be completed as it is here begun, the government, the profession, and the countrj', will have the entire series of all our public and private legislation, in force or obsolete, and of all our diplomacy, in a natural, easy arrangement, for consultation and reference ; with very perfect indices, with references in the margin, and notes to all the other Statutes, Resolves, or Treaties, relating to the maUer of the text, and to all Judicial Decisions of all the Federal courts applicable to the same matter ; constituting an absolutely authoritative national work. We learn that every law and treaty has been carefully collated with the driginals in the Department of Slate. It was deemed of much importance that the judgment of the Attorney-General should be pronounced upon the successive volumes of the edition, as they should appear, and before they should be accepted, and we think the publishers may with great Confidence hope for your approval of this first of the series. , .-/ We ha;(?e the honor (o be j-wilTigreat respect, . - , V, '..,-.,_ ^ „. _ . . ' . . Your obedient servants, ^?^^^ Tfp^A'^T? ' I Committee on the. part qf-tU rr*P^rHCE"' \ ^enate,^Bth Confess. Edmund Uurke, "i Committee on thepartqf W. B. Maclat, f the House o/Represeni- George p. Marsh, * atives, USth Congress. To tfie Hon. Rufus Choate, Hon. Benj. Tappan, Hon. J. A. Pearce; Edmund Burlce, W. B. Maday^ George P. Marsh. Attorney General's Office, April 1st, 1846. Gentlemen : — I have had the honor to receive your communication, accompanying the first volume of the new edition of the Laws of the United States, published by Messrs. Little & Brown, Boston. The publishers have now delivered five vol- umes, containing all the general laws ; and it has given me great pleasure to have it in my power to certify the highly satisfactory character of this portion of the work. It is, in the highest degree, creditable to the pubUshers. Although, by the terms of the Joint Resolution of Congress, my duty was limited to making a contract for one thousand copies, and to certifying that its conditions w^ere complied with, I have been consulted, unreservedly, by the publishers, in every stage of their work, and have found them at all limes ready to adopt any 20 LAW BOOKS. PUBLISHED BY suggestion to secure accuracy in. the publication, regardless of personal trouble or of expense. So far as the original Rolls exist, Ihey have been examined and carefully compared by competent persons with the sheets pf this edition of the Laws; and if any triviEjl|error shall b&,found in the publication, they can be readily corrected in the stereotyped plates, and thus a perfect edition of the Laws of the United States will Iwpbtained. I am gratified, to find that the order and arrangement prescribed by Congress, in this edition, will greatly facilitate reference, and, I doubt not, will be highly satisfac- tory to the. profession and to the public. , . ' My own experience in a judicial office has impressed me with the great value of such a publication, and I am happy toihave contributed, in any degree, in the preparation of so creditable a work. . ,! ^ I have the honor to be, with the highest respect, Your obedient servant, , ^ J. Y. Mason. Extract from the Act of Congress^ August Bthj 1846. " And whereas said edition of the said Laws akd Treaties of the United States has been carefully collated and compared with the original Rolls in the Archives of the Government under the inspection and supervision odhe Attorney General of the United States, as duly certified by that officer: Therefore, be it further enacted, that said edition of the Laws AND Treaties op the United States, published by Little & Brown, is hereliy declared to be competent evidence of the several public and private Acts of Congress and of the several Treaties therein contained in all the Courls of Law and Equity and Maritime Jurisdiction, and in all the Tribunals and Public Offices o^the United States and of the several States, ivithout any Jwrther proof or authentication thereof." SESSION liAWS. Public Laws of the United States of America, passed at the First Session of the Twenty-ninth Congress, 1845 — 1846. Carefully collated with the Orig- inals at Washington. Edited by George Minot, Counsellor at Law. Public Laws of the United States of America, passed at the Second Session of the Twenty-ninth Congress, 1846 — 1847. ParefuUy collated with the OriginSils at Washington. Edited by George Minot, Counsellor at Law. To be continued annually. " In publishing the following Laws, the same plan has been adopted that was pre'Soribed in the joint resolution of Congress of March 3, 1S45, authorizing a subscription to the edition of all the Laws of the United States, just published by us. A close examination of this pamphlet will disclose many difierences between the Laws as here printed and as printed in the official pamphlet ; but as we procured a careful collation with the records at Washington, by an experienced reader, of this oily, and have scrupulously followed the original, we feel justified in |gying that the public can safely rely on this publication. Any seeming errors, therefore, must be attributed to the Rolls, and not to us. Where anything absolutely necessary to the sense is omitted in the Rolls, our plan is to insert it in the text, enclosed in brackets. " We intend to publish annually, and as soon after the close of each Session of Congress as we can, the Acts of that Session, in a simitar form and with a similar arrange- ment. The pamphlets will be paged consecutively, and, when enough have accu- mulated to make a volume, we shall publish with the last one, a General Index to the whole, so that any one purchasing the successive pamphlets, as they come out, can then have a complete volume without any additional expense, other than that of binding them together." — Atitiertisement to the Present Edition. LITTLE AND BROWN. 21 AND PREPARING FOR PUBLICATION. Vohrnie First. Reports of Decisions Of the Hon. Levi Woodbury in the Circuit Court of the U. States for the First Circuit — Succeeding the third of Story's Reports — will soon be ready. II. In One Volume Octavo. Right of Property in Tide Waters And in the Soil and Shores thereof. By J. K. Angcll. The author instead of preparing a mere revised edition of his former work on that subject, has prepared a work on a different model, and very much enlarged. Many new and very highly important questions on the subject have been determined since the publication of the first edition. The following are the contents of the work now publishing. INTRODUCTION. Of the right of Territorial Jurisdiction over the Sea, Arms of the Sea, and Navigable Rivers. CHAP. L Right of Property in Tide Waters, &c. by the Civil Law and by the common Law. CHAP. II. Of the Introduction and application of the Common Law on the Subject in this country — Colonial Charters — Right of towns — Indian ' Grants — New States — Federal Government. CHAP. HI. "Shore," High-" Water Mark" and "Navigable River" defined. CHAP. IV. Of the Pub)ic Right of Navigation. CHAP. V. Of the Public Right of Fishery. CHAP. VI. Of Riparian Ownership — Right to the Water as appurtenant to Upland — Towing — Landing Places — Right of way to ,tbe Shore — Drawing Seines — Fishing Huts. CHAP. VII. Of Purpr,estures — Wharves — Quays — Piers, &c. CHAP. VIH. Of Marine Increases — Alluvion — Sea Weed — Reliction — Islands. CHAP. IX. Of Rights acquired by Custom and Prescription. 22 /? LAW BOOKS, IN PRESS BY III. % Howard's Reports, Vol. V. Eeports of Cases argued and adjudged in the Supkbmb Coubi Of the TJnited States, January Term, 1847. By Benj. C. Howard, JEsq. Volume 5, — nearly ready. IV. In One Volume Octavo, New Edition. Story on Contracts. ' A'Treatdse on the Law of Contracts not under seal — Second Edition — Much enlarged— By William W. Story, Esq. ^ V. In One Volwne Octavo. The Practice in Civil Actions And proceedings at Law in Massachusetts, &c. By Hon. Judge Colby. ;■ • • • VI. In Two Voiumes Royal Octavo. A Supplement to the United States Digest Of the Decisions of the Courts of Common Law and Admiralty to January 1, 1847, with a Table of Cases, by John P. Putnam, Esq. * VII. In One Volume Royal Octavo, Digest of the Mississippi Reports. A Digest of Cases argued and determined in the High Court of Errors and Appeals and the Superior Court of Chancery for the State of Mississippi, — embracing Walker*s Eeports, 1 Vol. — Howard's Eeports, 7 Vols. — Smede and Marshall's Reports, 7 Vols. — Truman's Chancery Eeports, 1 Vol. — Smede and MarshaU's Chancery Eeports, 1 Vol. By "V^. C. Smedes. LITTLE AND BROWN. 23 VIII, 4-.. Metcalf 's Reports, Vol. X. Reports of Cases argued and determined in the Supreme Judicial Court of Massachusetts. By Tlieron Metcalf. Vol. 10. IX. In Three Volwnes Royal Octavo. Cruise on Real Property, Edited by Professor Greenleaf. A Digest of the Laws of England,- respecting Eeal Property. By William Cruise, Barrister at Law. Revised and consid- erably enlarged by Henry Hopley White, Esq., Banister at Law of the Middle Temple. Eifth American, from the Eourth London Edition,' revised and enlarged with Notes and Illustrations from the Koman, Civil, and. Foreign Law, and specially adapted to the American Practice, by Simon Greenleaf, LL.C, EoyaU Professor of Law in Harvard University. Nearly ready. X. New Equity Digest. A General Equity Digest, to embrace all the Decisions in Equity in Eng- land, Ireland, and the United States. It will comprise all the Decisions, whether in Courts of exclusively Equity Jurisdiction, or of mixed Jurisdiction, and will extend down to the time of publication. XI. In Qn£ Volume Royal Octavo. CoUyer on Partnership. A Practical Treatise on the Law of Partnership, by J. CoUyer, with additions ♦« by J. C. Perkins, Esq. New edition. XII. In Two Volumes Royal Octavo, ' A Treatise on the Law of Mortgages. A Treatise on the Law of Mortgages, embodying all the general principles of the Law of Mortgage, European and American, with Notes containing the Statutory Law of each State in the United States, with their peculiar local law, created by the decisions of then: Courts,- &c. &c. Nearly ready. ,;#'* 24 LAW BOO^iS, IN PRESS BY LITTLE AND BE6WN. XIII. In Two Volumes Royal Octavo. Taylor's Treatise on the Law of Evidence. A Treatise on the Law of Evidence, by John Pitt Taylor, Esq. XIV. In One Volume Boyal Octavo. Burge on the Contract of Suretyship. Commentaries on the Contract of Suretyship, its Kights and Obligations, and the manner in which they are enforced under the Law of England, the States of Europe, and America, by WiUiam Burge, Esq. LITTLE & BROWN, 112V WASHINGTON STREET, BOSTON. Have constantly for sale a very extensive collection of Law Books, consisting of the Reports of the several States, and the Englis^Beports, as well ancient as modern, together with the most approv'ed elementary treatises, &c. Orders for Foreign" Law Books, or Miscellaneous Books, .^ forwai:ded twice a month,'^and returns received by the Steam- ers. Most of our publications are stereotyped, and are there- fore never out of print. Libraries, whether Law or. Miscella- neous, furn^ishedjat the shortest notice, on as good terms as can be offered by any other house in the country. Catalogues of our books will be sent gratis to such gentlemen as desire them, and will send us their address free of postage. Prtds of Coolidije & V\ ilt7, J^ M'ater Street, Boston. #