plaintiff in execution had obtained an unconscientious verdict against him; the
court, after deciding that the failure to make the defence at law was the omis-
sion of the claimant's, review some of the facts in proof, which tended to show
that the claimant was not without blame, and to cast a shade of suspicion over
the fairness of the deed of trust, and to show a want of good faith on the part
of the trustee. Ib.
36. See Mortgage. See Vendor and Vendee.
See Bills of Exchange and Promissory Notes.
1. The clerk of the circuit court is required to give bond conditioned for the
faithful performance of the duties of his office; whatever, therefore, is a
duty required by law is covered by the condition; and a failure to discharge
such duty is a breach of the bond, for which the injured party may recover
damages commensurate to the injury. Brown v. Lester, 392.
2. It is, under the statutes of this state, the duty of the clerk of the circuit
court to make out proper dockets of causes in the order required by the law;
and a breach of this duty is a breach of his bond, for which he will be lia-
ble in an action to any party injured thereby. Ib.
3. In an action on the official bond of a clerk of the circuit court, the plaintiff
alleged as a breach that he had instituted his suit, (the parties to which and
cause of action he described,) to a particular term at which it was brought
to issue, and he was entitled to a trial, and would have obtained a judgment
at the next term, had the case been put on the docket; but the clerk omitted
to place it there, by which omission he lost the opportunity of a judgment
at that term,
and thereby lost his debt by reason of his debtor's insolvency,
which, if he had obtained judgment at the proper time, would not have
been the case: Held, that the breach was well assigned, and exhibited a
cause of action against the clerk. lb.
4. The omission to discharge a duty prescribed by a directory statute, may not
vitiate the proceedings of the officer as to third persons; but he is liable to
any party injured by his failure. Ib.
5. In an action on the official bond of a clerk of the circuit court, the suit must
be brought in the name of the governor of the state for the use of the ag-
grieved party; where, therefore, a suit has been instituted by one for the use
of another, and the latter desires to sue for neglect of the clerk in the conduct
of the suit, on his official bond, he must institute the suit in the governor's
name, for his own use, and not for that of the nominal plaintiff. Ib.
CIRCUMSTANTIAL EVIDENCE.
See Criminal Law.
COMMISSIONER OF SINKING FUND.
Under the ordinance organizing the Mississippi territory and the constitution of
1817, schedule, sec. 5, all English statutes are excluded from operation in
this state, and only the common law and the statutes of our own government
adopted for the determination of the rights of the citizen.
CONFESSION.
See Criminal Law.
1. By the charter of the town of Aberdeen, in 1837, the legislature granted to it
the sole power to grant licenses to sell vinous and spirituous liquors within the
corporate limits thereof, and to appropriate the money arising therefrom to
city purposes; in 1848, an act was passed by the legislature, changing the
purposes to which the money so arising was to be applied, and directing it to
be paid to the Aberdeen Female Academy: Held, that the last act was un-
constitutional. By its charter the city had a vested interest in the profits
arising from the exercise of the franchise of granting licenses; which, while
it continued the franchise, the legislature could not take away from the city.
It might take away the franchise altogether; but if permitted still to reside
with the corporation, it must remain with all its incidents and advantages.
Aberdeen Female Academy v. Mayor and Aldermen of Aberdeen, 645.
2. See Costs, as to how far law for sale of judgments for, constitutional.
1. Several persons signed the following statement, viz. : “We have personal
and intimate acquaintance with G.; have known him a number of years;
and we can with pleasure testify to his strict adherence to truth, punctuality
in contracts, perseverance in business; that he is an unexceptionable mem-
ber of the Baptist church; in a word, we look upon him as an honest and
responsible man, and worthy of all credit;" and delivered it to G., to
enable him to purchase goods in a neighboring city, though it was addressed
to no particular person; upon the faith of it, G. bought a quantity of goods
at different intervals from C., and left the country without paying for them.
Held, the signers were liable to C., in an action of deceit upon this
instrument, for the value of the goods sold G. and not paid for by him,
proof that G. was not, when the instrument was written, a " responsible"
man, i. e. one able to discharge his obligations, and that that fact was
known to the signers. Clopton v. Cozart, 363.
2. It seems, however, that the liability of the signers would not extend to trans-
actions between C. and G. after the former had discovered the fact of G.'s
irresponsibility; in such case, C. would not be deceived, for he would
know the representation to be false. Ib.
3. C. & M. made the following agreement, viz.: "M. agrees to take into part-
nership said C. in a certain lot in the city of Jackson, for and in consideration
of one hundred and sixty-five dollars, and that both parties are to hold the
land in company; M. promises C. to pay his half of the above sum, being
eighty-two dollars and a half, on or before the first day of May next; and
failing in doing so, shall forfeit his claim thereto if not paid within at least
three months after said first day of May next." C. paid the money, and
took the title in his own name; M. in due time tendered his half of the
purchase-money without interest to C., who refused it: Held, that the
written agreement was not void under the statute of frauds; it specified the
terms sufficiently to enable the court to decree its specific performance.
Connell v. Mulligan, 388.
4. Nor was it void for uncertainty because the lot was not described; the lot for
which the money was paid was the one intended, and that being disclosed
in the pleadings was sufficiently identified. Ib.
5. Nor was M. under the contract bound to tender more than one half the
purchase-money without interest; yet if he were, as no objection was made
to the amount of the sum tendered at the time, but it was rejected on ano-
ther ground, it would not avail as an objection afterwards. lb.
6. Nor was it any objection to a specific performance being compelled, that M.
refused to pay C. one half the expense of inclosing the lot; under the
agreement M. was not bound to do so. Ib.
7. B. & D. were sureties of C. upon a note held by a bank, on which suit was
instituted against all the parties; C. becoming insolvent, B. and D. proposed
to execute their separate notes each for half the sum due, with sureties on
each, and take up the note sued on with these new notes; in February, 1841,
B. made his note with sureties for his portion, and delivered it to the bank for
his half of the debt sued on; the bank retained the note, but whether at once
it agreed to the proposal was not clear; in August, 1841, B. informed one of the
directors of the bank that he did not wish the note discounted by the bank, and
applied to the bank for it; in October, 1841, the suit upon the note of C. was
dismissed, and the bank subsequently sued B. and his sureties on the note
given by him for his half of the other debt: Held, on these facts, that B., and
his sureties were liable on that note; the holding of the note for so long a time
by the bank, without an offer to return it, might of itself be regarded as an
acceptance of the proposition of B.; and it would be unjust to allow B. to
escape the payment of the note made by him, without putting the bank back
in the condition in which it was before the dismissal of the suit on the first
note. Commercial Bank of Manchester v. Bonner, 649.
8. In a conveyance from W. to trustees, for benefit of B., was embraced a
tract of land of 320 acres, which was afterwards levied on and sold by the
sheriff, under an execution issued upon a judgment against W. older than
the deed of trust, and purchased by B., the cestui que trust, and deed made
to him by the sheriff; this tract of land was afterwards sold under an exe-
67
cution against B., and bought for B.'s wife, with her own separate funds,
for a less sum than at the first sale: Held, that although B., after his pur-
chase at sheriff's sale, promised W. that he should have the benefit of it
after sale, yet as this was a promise made by B. after the purchase, without
any previous agreement, and without any consideration to support it, it
could not have been enforced if the land were still in the hands of B.
Walker v. Brungard, 723.
9. A cestui que trust may certainly purchase the trust estate as freely as any third
person; but even to hold that the purchase of the plantation converted B.
into a trustee, and that the sub-purchaser was likewise a trustee, the sale
could not be set aside without a decree for the repayment of the purchase-
money; there being no offer to make such payment, nor evidence to show
that the land is now worth more than it brought when sold, the sale could
not be set aside. lb.
10. A party being about to purchase a large amount of real and personal estate,
obtained a friend to indorse his paper, and to procure others to indorse it,
to enable him to make the purchase; and for doing this he paid the person
thus indorsing and procuring other indorsers for him, a large sum; after-
wards the maker of the note being about to fail, conveyed a large amount of
property to this indorser for his indemnity: Held, in a subsequent account-
ing between the maker and indorser, touching this property so conveyed,
that the indorser could not be compelled to account for the sum previously
paid him as a bonus for indorsing and procuring indorsers on the paper of
the maker. lb.
11. Where a maker of a note who became insolvent, conveyed, among other pro-
perty, a remnant of a stock of goods to his accommodation indorser for
his indemnity, which goods the latter sold, it was held, in an accounting be-
tween the maker and indorser, that the latter could not be held accountable
for the invoice price of the goods, but merely for what they brought when
sold. lb.
12. See Evidence; for how far written contract varied by parol proof. See
Deed. See Husband and Wife.
1. It is now the settled doctrine upon common law principles, independent of any
statute declaring a different rule, that, upon the dissolution of a corporation,
the debts to and from it are extinguished.
President and Selectmen of Port Gibson v. Moore, 157.
2. The town of Port Gibson was incorporated in 1821, and its charter subsequently
amended by various acts of the legislature; in 1841, an act was passed re-
pealing the act of 1821, and all the subsequent amendments: Held, that this
latter act, when accepted by the corporation, was a dissolution of it. lb.
3. In 1844, the act of repeal of 1841 was itself repealed, "and the act for the in-
corporation of the town passed in 1821, and the other amendatory acts
declared to be in full force; " and the act of 1844 directed "to take effect
from and after its passage:" Held, that this last act did not revive the old
corporation; but was a new creation, a new act of incorporation, and did not
revive former liabilities of the old corporation extinguished by the act of
1841. lb.
4. By the charter of the town of Aberdeen, in 1837, the legislature granted to
it the sole power to grant licenses to sell vinous and spirituous liquors within
the corporate limits thereof, and to appropriate the money arising therefrom
to city purposes; in 1848, an act was passed by the legislature, changing the
purposes to which the money so arising was to be applied, and directing it to
be paid to the Aberdeen Female Academy: Held, that the last act was un-
constitutional. By its charter, the city had a vested interest in the profits
arising from the exercise of the franchise of granting licenses; which, while
it continued the franchise, the legislature could not take away from the city.
It might take away the franchise altogether; but if permitted still to reside
with the corporation, it must remain with all its incidents and advantages.
Trustees of Aberdeen Female Acad. v. Mayor & Aldermen of Aberdeen, 645.
5. See Banks.
1. The true construction of the act of 1844, authorizing the sale of judgments for
costs, considered and held to be that, where the defendant in the judgment,
or one of the defendants, has purchased the judgment at the sale, the judg-
ment is thereby extinguished and satisfied; subject, however, to the right of
the plaintiff at any time within three years to sue out a scire facias against
the defendant, and show that he has other property besides that which he
gave for the judgment; in which event the sale is vacated and the judgment
revived; but the plaintiff cannot redeem from the defendant.
Lee v. Boykin, 528.
2. Whether this law for the sale of judgments for costs be constitutional, and
whether a valid order of sale can be made without notice to the plaintiff in
the judgment, left to be determined hereafter. 16.
1. The prisoner was indicted in the county of Issaquena in April, 1848; the county
seat of which, by the act of 1846, was established at Tallula; but by an act
passed in January, 1848, the board of police were authorized to remove the
county seat to such point as they might select; the caption of the indictment
stated that the court was holden at Tallula; the prisoner plead that "Tallula,
the place at which the court was holden, was not at that time the county
seat of the county;" to which plea the state demurred: Held, that the
demurrer admitted that the court was not holden at the place designated
by law, and that the indictment therefore should be quashed.
Sam v. State of Mississippi, 189.
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