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SPECIFIC PERFORMANCE OF CONTRACT.

See Chancery.

STATE COMMISSIONER.
1. In this case the question was, whether a payment made by a debtor of the

commissioners of the sinking fund, when they consisted of the president and
cashier of the Planters' Bank at Natchez, and the auditor of public accounts,
to the cashier of the branch of that bank at Jackson, was a valid payment;
and in that was involved the question of the extent of the agency of the cashier
of the branch at Jackson to receive the payment; the facts are reviewed and
the conclusion reached that the payment was invalid, because the cashier of

the branch at Jackson was not authorized to receive it. Dean v. Young, 118.
2. It was further held, that the cashier of the branch at Jackson was a compe-

tent witness without a release from the commissioners of the sinking fund, to
prove for them that he did not act as agent of the commissioners in receiving
the payment; for the commissioners denied this agency, and he was therefore
in no wise liable to them; and if liable at all, it was to the debtor of the fund,

and he was therefore testifying against his interest. Ib.
3. Walker v. Comm’rs of Sinking Fund, 6 How. 143, cited and confirmed, de-

ciding that the commissioners were trustees, and could sue at law on con-

tracts concerning the fund. Mathews v. Mosby, 422.
4. Young v. Hughes, 12 S. & M. 93, cited and confirmed, deciding that the state

commissioner, appointed under the act of 1844, has succeeded to the trust in
reference to the sinking fund, and can sue as the commissioners could have

sued on contracts made with them. 16.
5. After the passage of the act of 1844, creating the state commissioner, a judg-

ment was recovered in the names of the commissioners of the sinking fund,
in a suit instituted by them before the passage of that act; the state com-
missioner afterwards sued out a scire facias, to revive this judgment in his
name: Held, that the judgment in favor of the commissioners, rendered after
the creation of a new trustee, was not void ; at most it was but erroneous,

and must stand till regularly reversed. Ib.
6. It seems, however, that the judgment was properly rendered in favor of the

commissioners of the sinking fund; they had begun the suit, and there was
no prohibition, in the act appointing the state commisssioner, to their prose-

cuting it to judgment. Ib.
7. Where, therefore, parties sued by the commissioners of the sinking fund

before the act of 1844, creating the state commissioner, allowed them to
prosecute their suit to judgment, in their names, after the passage of the act ;
it was held, that if the former commissioners, by the act of 1844, were de-
prived of all right to sue, it was a matter of defence, on the part of those
sued, to the rendition of judgment; and if they allowed judgment to go
without making it, they could not afterwards make it to a scire facias to re-

vive the judgment. lb.
8. The debts due the sinking fund belong to the state of Mississippi; a debtor,

therefore, to that fund, when sued by the state commissioner, cannot set up

the statute of limitations in bar of the suit. Hill v. Josselyn, 597.
9. The sinking fund, prior to the act of February, 1844, was, by law, under the

management of the auditor of public accounts, and of the president and
cashier of the Planters' Bank; these persons were thereby created trustees,
for what to some extent was a public purpose ; and the act of a majority of
them, therefore, in the conduct of the fund, it seems would be binding and
authoritative, but the act of any one of them would not be without the sanc-
tion of one of the others. 1b.

STATUTES.
See Corporation, for effect of repeal of.

SUPERIOR COURT OF CHANCERY.

See Chancery.

SURETY.
1. A securityship is to be distinguished not so much by the name as by the na:

ture of the transaction. Langan v. Hewett, 122.
2. A surety of a surety has no claim to contribution.

Knor v. Vallandingham, 526.
3. D. as principal, and S. and K. as sureties, executed a note, and judgment was

recovered by the payee against all of them; execution thereon was levied on
the property of S., who gave a forthcoming bond with V. and L. as sureties;
on the insolvency of S., V. and L., against whom and S. judgment on the bond
had been rendered, were compelled to pay the money; and thereupon V.and L.

sued K. for contribution : Held, that the claim could not be maintained. 16.
4. See Partnership, when name of firm signed as surety. See Execution.

THREE PER CENT FUND.
By the statute of 1836, the three per cent. fund was distributed amongst the

several counties in the state, and placed in the custody and under the control
and management of the boards of police, who were directed to apply this
fund or its interest to the opening of roads and canals; by the act of 1837,
(Hutch. Dig. 13,) boards of police having surplus funds were authorized
to invest them in such stocks as they might deem advisable : Held, that,
under these statutes, a note executed to the president of the board of police
of Clarke county, for a portion of the three per cent. fund loaned out by the
board to the maker, was a valid contract, and its collection could be enforced.

Haynes v. Covington, 408.

TITLE.
See Bills of Exchange and Promissory Notes : see Land Laws.

TRIAL OF RIGHT OF PROPERTY.
1. In a trial of the right of property levied on under execution, the defendant in

execution is a competent witness for the claimant, who claims under pur-

chase from the same defendant. Ewing v. Cargill, 79.
2. On the trial of the right of property levied on, under execution, the jury,

in assessing the value of the property, should be governed by its value at the
time of trial; if the claimant, therefore, can show a depreciation in
value, he may do so; or he may show that it was legally taken out of his

possession by one having a paramount title. Selser v. Ferriday, 698.
3. This showing must be made at law on the trial of the issue, by proper evi-

dence under appropriate pleading; and if not so made, and it was in the power
of the party so to have made it, it will be too late after judgment to make it
in a court of equity. Ib.

TROVER.
1. In an action of trover, the cause of action accrues from the time of the con-

version. Johnson v. White, 584.
2. See Limitations, Statute of.

TRUST AND TRUSTEE.
1. The facts of this case examined by the court, and the conclusion reached that

part of the lands in controversy in the cause, was purchased by the defen-
dant for the testator, whose devisee the complainant claimed, and with
the testator's money; and that a resulting trust was created thereby in favor
of the testator, and through him, of his devisee; which trust the court estab-

lished. Mahorner v. Harrison, 53.
2. Before a resulting trust can be raised, the payment or advance of money

much precede the purchase ; a subsequent payment where the trust is denied

will not suffice for that end. Ib.
3. It seems, however, in cases of private trusts and joint agencies, that all the

trustees must join in the act. Hill v. Josselyn, 597.
4. A trustee who takes no benefit under the trust is generally a competent wit-
ness, but one who does take an interest under the deed is incompetent.

Selser v. Ferriday, 698.
5. W., in his cross-bill alleged, that a brick house, part of the property embraced

in the trust deed, was sold by trustees, and purchased by B., and to him con-
veyed, with the understanding that it should be afterwards mortgaged to the
Union Bank to raise money, and that the amount so raised should be applied to
the benefit of the trust fund ; B. positively denied this in his answer; the
deed to the property is absolute and unconditional, the testimony mostly re-
lied on to assail it is that of the trustees : Held, that as the agents of all the
parties interested under the trust deed, it was the duty of the trustees par-
ticularly to the creditors, to make none but an open, fair, and bona fide
sale, they should not have lent themselves to a secret understanding be-
tween W. and B. which was a departure from good faith, and created
risk and hazard to the creditors in the deed of trust; but at most this

amounts only to a parol agreement in regard to land, and not to a resulting

trust. Walker v. Brungard, 723.
6. A resulting trust is where the conveyance is taken in the name of one per-

son, while the consideration is given or paid by another ; so if trust money
be invested in land, the money may be followed, and a claim of this sort may

be supported by parol evidence. 16.
7. B. denied that he made the purchase in trust, or that trust funds were paid

for it, and there was no written evidence; his deed from the trustees cannot

be set aside, or declared subject to a trust upon such testimony. 16.
8. 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. Ib.
9. See Deed.

TRUSTEES OF BANKS.
See Banks and Scire Facias.

TRUSTEES OF SCHOOL LANDS.
1. Under the act of 1833, the trustees of school lands were empowered, under

certain circumstances, to lease for ninety-nine years the school sections; and
it was provided, in the same act, that in townships not having sufficient pop-
ulation to elect trustees according to the law, the board of police for the
county in which such townships were situated, should lease the section
"according to the provisions of the act, and in all other respects perform
the duties required of the trustees ; " it was held, that the board of police,
in acting under this law in leasing a school section, do not act as a court;
the leasing is the exercise by the board of a special duty imposed by the
legislature, not within its ordinary constitutional jurisdiction as a court; and
the mode of its exercise is pointed out by the law to be in the same manner
as if trustees had been elected ; a lease, therefore, by the board of police,
which would be good if made by trustees, would be good if made by the

board. Phillips v. Burrus, 31.
2. The law of 1833, authorizing trustees to lease school sections for ninety-nine

years, prescribes the prerequisites necessary to constitute a good lease, all
of which must be complied with to make the lease valid, viz: 1, the re-
quest of a majority of the heads of families in the township, minors not
excepted ; 2, six weeks' notice by advertisement in a newspaper, or if no
paper is printed in the county, by posting notices in three public places ;
3, an actual leasing to the highest bidder at the time and place specified ;
and 4, in the case of a lease by the board of police, that there is not suffi-
cient population in the township to elect trustees. 16.

3. The law of 1833 prescribes no mode for the perpetuation of these prerequi-

sites, nor by what evidence they shall be established ; it does not require
any of the steps to be made of record; it is, therefore, a matter in pais, to
be established by parol proof, the duty of preserving which appertains to the
purchaser, whose right is derived from the exercise of a naked statute power.

Ib.
4. Therefore, in an action of ejectment brought against one in possession of a

school section under a lease for ninety-nine years from the board of police,
it would be competent for the lessee to prove, in support of the deed of
lease from the board of police to him, the entries on the minutes of the
board in relation to their action in the premises, and to show by parol the

due and legal notice of the leasing. lb.
5. See Limitations, Statute of.

UNITED STATES COURT.
Where a cause is instituted in the state court by a citizen of this state, against a

non-resident, and the latter applies according to the act of congress for its re-
moval to the United States court; and on it being refused, appeals to this
court, which requires it to be done on the execution of the proper bond, and
upon the return of the case to the state court, the non-resident omits to give the
bond, the state court will have jurisdiction to go on and try the case.

Hill v. Henderson, 688.
VALUATION LAWS.

See Execution.

VENDOR AND VENDEE.
1. Where a bond is given conditioned, in consideration of a sum paid in cash,

to make title on a given day, the obligor is not in fault, and no action can
be maintained against him on the bond until the obligee has demanded a
deed ; and unless upon such demand, the obligor prepare and tender the deed
to the obligee, his bond is forfeited, and he is liable to an action upon it.

Standifer v. Davis, 48.
2. It is, therefore, in an action on such a bond, sufficient for the plaintiff merely

to allege a demand of the deed; he need not allege that he had prepared

and presented it for execution. 16.
3. In a bill filed by the vendor of land to enforce his lien for the purchase money

against the widow and heirs of the vendee, proof by one witness that the
vendee had acknowledged that the notes held by the vendor were given for
lands in this state, and as witness thought, in the county where the lands
lay on which the lien was claimed, was held sufficient in the absence of evi-
dence of any other sale of lands in this state, to sustain the allegations of the
bill as to the notes being given for the land claimed.

Glasscock v. Robinson, 85.
4. It is not competent for the vendee of land to resist the vendor's equitable lien

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