FERGUSON v. FERGUSON.

(Supreme Court of Mississippi. March 11, 1889.)

HOMESTEAD-ALLOTMENT-AUTHORITY OF COURT.

Where commissioners have allotted a judgment debtor as homestead two tracts of 80 acres each, instead of a single 80, the court should direct a new allotment; and it is error in such case for the court to restrict the homestead to a designated tract, and direct the other tract to be subjected to the judgment.

Appeal from chancery court, Wilkinson county; L. MCLAURIN, Chancellor. The appellee, Catherine Ferguson, a judgment creditor of appellant, P. L. Ferguson, had an execution issued against him, and the sheriff levied the same on the lands of the appellant. He claimed 160 acres as a homestead exemption. Commissioners were selected under the law, who allotted to him 160 acres; said allotment being of two 80-acre tracts. A report was made to the court, which, on motion of the appellee to subject one of the tracts to her execution, decreed that the exemption should be restricted to one 80-acre tract, and that the other 80 acres should be subject to the execution of appellee, from which decree P. L. Ferguson appeals.

T. V. Noland, for appellant. D. C. Bramlett, for appellee.

COOPER, J. Since the homestead of the appellant was restricted to 80 acres, the court should have directed a new allotment. There is nothing in the record indicating that the complainant would have selected, or the commissioners have allotted, the tract of land set aside by the court. Decree reversed.

SANDERS v. SMITH.1

(Supreme Court of Mississippi. December 3, 1888.)

NEGOTIABLE INSTRUMENTS-CONSIDERATION-EXTENSION OF TIME.

Defendant was indorser of a note held by plaintiff. After its maturity defendant agreed that on transfer to him of the note, and of the trust deed securing it, he would indorse a new note for the amount due. He indorsed the new note, but the old note and trust deed were not assigned to him. Held, that in the absence of a showing that he was damaged by the failure to assign and deliver the old note, defendant was liable on the new note; the extension of time of payment on it being a sufficient consideration.

Appeal from circuit court, Issaquena county; J. H. WYNN, Judge.

Action by P. R. Sanders against R. M. Smith on a promissory note. Defendant was indorser on a note executed by his sister, which note was secured by a deed of trust. The note became due, and was presented to defendant, who declined to pay the same, but agreed finally that, on the transfer of the old note and deed of trust, he would indorse a new note for the amount due. He indorsed the new note, but for some reason did not receive the old note and deed of trust. Sanders sued on the new note on failure to pay when it was due, and defendant pleaded failure of consideration, in that the old note and deed of trust had not been transferred and delivered to him. Verdict and judgment were entered for defendant, and plaintiff appeals.

Lea & McKee, for appellant. Miller, Smith & Hirsh, for appellee.

ARNOLD, C. J. The liability of appellee on the old note, and the extension of the time of payment on the new note, constituted sufficient consideration for the latter, and it is not disclosed by the record how there has been an entire failure of consideration as to the new note. Appellee's liability on it

'Held by the court on suggestion of error.

would be diminished by any loss or damage he may have sustained by the failure to assign and deliver to him the old note and the deed of trust by which its payment was secured, (Chaffe v. Taliaferro, 58 Miss. 544,) but it is not shown that he has suffered any loss or damage on that account. According to the testimony for appellee, he became the owner and was entitled to have the old note and the trust deed assigned to him when the new note was executed, and he is now, without a formal assignment and delivery, the equitable owner of them. The old note was past due when the new one was given, and it is not perceived how, under our anti-commercial statute or the commercial law, appellee could be held liable on the old note, either in the hands of appellant or of any other person.

The judgment is reversed, and the cause remanded.

PATE et al. v. TAYLOR.

(Supreme Court of Mississippi. January 14, 1889.)

VENUE IN CIVIL CASES-TRANSITORY ACTIONS-COUNTY-RESIDENCE.

Under Code Miss. § 1847, authorizing suits to be brought in the chancery court of the county where the property involved may be, or in which one or more of the defendants resides or is found, or in any county in which an action of the same nature might be brought in the circuit court, and providing that suits against an administrator touching the performance of his official duties, for an accounting, or for distributive shares, etc., may be brought in the county where administration was granted, and section 1834, giving jurisdiction to the court from which letters of administration were issued to determine all questions relating to the trust, of all demands against the estate by creditors, distributees, etc., and of actions on bonds taken in the course of administration,-an action by an administrator against one to whom he has sold the personal property of the estate for the purchase price, a bank with which the purchaser had deposited the funds for the payment of the debt being also a defendant, can only be brought in the county in which one of the defendants resides or is found.

Appeal from chancery court, Panola county; J. G. HALL, Chancellor. C. E. Taylor, as administrator, sold certain personal property. J. B. Pate & Co. were the purchasers thereof. The sale was for cash, but Taylor agreed to take the due-bill of the purchasers, who were to deposit the money in the Bank of Water Valley. Pate & Co. deposited the money, and sent Taylor the deposit ticket., Afterwards the bank refused to pay the money over to Taylor, because Pate & Co. had instructed it not to do so. Taylor brought this proceeding in the Second district of Panola county to recover this purchase money. Pate & Co. and the Bank of Water Valley were doing business and living in Yalobusha county. The defendants demurred to the petition, (having been found and summoned in Yalobusha county,) raising the question of jurisdiction. The demurrer was overruled, and there was a decree in favor of Taylor, the administrator, from which the defendants appealed. "Sec. 1834. The court in which the will may have been admitted to probate, letters of administration granted, or the guardian may have been appointed, shall have power and jurisdiction to hear and determine all questions in relation to the execution of the trusts of such executor, administrator, guardian, or other officer appointed for the administration and management of such estate, and of all demands by heirs at law, distributees, devisees, legatees, wards, creditors, or otherwise, and shall have power and jurisdiction in all cases in which bonds or other obligations shall have been executed in any proceeding in relation to such estates, or other proceedings had in said chancery courts, to hear and determine, upon proper proceedings and proof, the liability of the obligors in such bond or obligation, whether as principal or surety, and by decree and process to enforce such liability." "Sec. 1847. Suits respecting real or personal property may be commenced in the chancery

court of the county in which said property, or some portion thereof, may be; and in all cases suits may be brought in any county where the defendant or any necessary party defendant may reside or be found; or in any county in which a suit touching the same matter might be brought in a circuit court, and process may issue to any county in the state to bring in necessary defendants, and to enforce all orders and decrees of the court: provided, that suits against executors, administrators, and guardians, touching the performance of their official duties, and for an account and settlement by them, and suits for the distribution of personalty and partition of the real estate of decedents among the heirs and distributees, and for the payment of legacies, shall be commenced in the chancery court in which the will was admitted to probate or letters of administration were granted, or the guardian was appointed."

I. T. Blount, for appellants. S. C. Cook, for appellee.

ARNOLD, C. J. The suit was commenced in the Second district of the chancery court of Panola county, but it is not alleged or shown that either of the defendants resided or were found in that county. It is alleged in the petition that each of the defendants was doing business in Yalobusha county, and it appears from the record that both of them were found and summoned in the latter county. In this state of facts, the court below was without jurisdiction. To maintain such suit it was necessary that the defendants, or one of them, should have resided or been found in the county where the suit was brought. Wolley v. Bowie, 41 Miss. 553; Andrews v. Powell, Id. 729; Code, § 1847. Neither section 1834, nor the latter part of section 1847, of the Code applies in such case, because the suit was not brought on a claim or demand against the estate, nor against the administrator touching the performance of his official duty, nor for the payment of legacies, nor for distribution among heirs and distributees, nor to enforce liability on a bond or obligation required by law and taken in the progress of the administration of the estate. Hunt v. Potter, 58 Miss. 96. The demurrer to the petition should have been sustained. The decree is reversed, the demurrer sustained, and the petition dismissed.

FREEMAN et al. v. SUPERVISORS.

(Supreme Court of Mississippi. January 14, 1889.)

1. FENCES-AUTHORITY OF COMMISSIOners.

Where commissioners were appointed to lay out and construct a fence under act Miss. 1878, and deflected from the lines designated by them to take in other lands, the owners of which agreed to pay the extra expense, an injunction obtained by the county supervisors against the building of the fence was properly dissolved. 2. INJUNCTION-DISSOLUTION-ATTORNEY'S FEES.

Under Code Miss. § 897, giving the county all remedies to which individuals are entitled, the county must pay the attorney's fees of the commissioners on dissolution of the injunction.

Appeal from chancery court, Lee county; B. MCFARLAND, Chancellor. Under act Miss. 1878, (extended by amendment to Lee county,) citizens of supervisors' districts may petition the supervisors to appoint commissioners to have fences constructed around certain portions of the district, and under the act it was the duty of the commissioners so appointed to assess and collect the tax to pay for the fence; the county having nothing to do with the matter except to appoint the commissioners and designate the lines upon which the fence must run. Certain citizens petitioned the board of supervisors to appoint commissioners to erect a fence around a certain township in Lee county. T. H. Freeman et al. were appointed, and the lines upon which the fence was to be erected were designated. The commissioners proceeded to erect

the fence, following the lines designated, except in one instance it was deflected to take in certain citizens who offered to pay for the increased fencing caused by the deflection. The supervisors enjoined the commissioners, because they were not building the fence on the lines designated in the order of their appointment. On motion the injunction was dissolved, but the court refused to allow the commissioners attorney's fees for the wrongful suing out of the injunction. T. H. Freeman et al., commissioners, appealed because of this refusal, and there was a cross-appeal by the supervisors because of the dissolution of the injunction.

Clayton & Anderson, for Freeman et al. J. L. Finley, for supervisors.

ARNOLD, C. J. It is only in regard to matters in which the county is interested that boards of supervisors may sue. Code, § 2175. The county was not interested in the subject-matter of this litigation. It concerned only the part of the people of the county who were interested in the fence, and affected by the proceedings to construct the fence, under the act of 1878. The bond required of the commissioners appointed to construct the fence is the security provided by the act for any person interested who may have cause to complain of the acts and doings of the commissioners. There was no error in dissolving the injunction and dismissing the bill; but as a county is entitled, under section 897 of the Code, to all the actions and remedies to which individuals are entitled, it cannot escape liability for cost and damages which it has caused by the wrongful suing out of an injunction. The actual damages claimed by the commissioners, and which are admitted to be reasonable, should have been allowed. State v. Fortinberry, 54 Miss. 316; Baggett v. Beard, 43 Miss. 120.

On the appeal the decree is reversed, and decree here for appellants Freeman & Davis for the damages claimed, $55. On the cross-appeal the decree is affirmed.

JONES v. HERVEY.

(Supreme Court of Mississippi. January 14, 1889.)

EQUITY-PRACTICE-DECREE PRO CONFESSO.

Defendant was summoned to answer a bill in equity at rules on September 3d. On the third day of the next term, which began September 17th, a decree pro confesso was taken against her. Held erroneous, under Code Miss. § 1889, allowing a party until the next monthly rule-day to plead, etc.

Appeal from chancery court, Yalobusha county; J. G. HALL, Chancellor. Bill in equity by M. A. Jones against S. B. Hervey. Defendant was summoned to appear on the 3d of September at rules. A regular term of the court was held commencing on the 17th of September, and on the third day of that term a decree pro confesso was taken against her. Decree final was rendered against appellant, from which she appealed.

Chapman & Lowe, for appellant.

CAMPBELL, J. As the process for the defendant was returnable before the clerk at rules on the first Monday of September, which was a rule-day in vacation, it was erroneous to render a decree against the defendant, who was allowed until the next monthly rule-day to plead, demur, or answer. Section 1889, Code.

Reversed and remanded.

PERRY v. MCLAIN.

(Supreme Court of Mississippi. January 21, 1889.)

SPECIFIC PERFORMANCE-ORAL RESCISSION OF CONTRACT.

An oral agreement to rescind a contract of sale of land is a good ground for refusing to specifically enforce the original contract.

Appeal from chancery court, Itawamba county; B. MCFARLAND, Chancellor.

William Perry, by written contract, sold some land to A. J. McLain, and took notes for the purchase money. Part of the purchase money was paid, but, difficulties arising about the title, there was a parol agreement to rescind the trade. They also agreed to refer the matters of improvements made by McLain, and rent due for the land, to arbitration, and an award was made. Perry, being dissatisfied, filed a bill for the specific performance of the written contract of sale and purchase, to which McLain pleaded the oral agreement to rescind the trade. The cause was submitted on bill and plea, and the court decreed that complainant was not entitled to specific performance, and dismissed the bill, from which complainant appeals.

Newman Cayce, for appellant. Clifton & Eckford, for appellee.

CAMPBELL, J. Although the oral agreement to rescind the contract of sale was not such as a court would specifically enforce, it presents a good ground for refusal by the chancery court to specifically enforce the original contract in writing for the sale of the land. McCorkle v. Brown, 9 Smedes & M. 167; England v. Jackson, 3 Humph. 584; 2 Story, Eq. Jur. § 770; 2 Reed, St. Frauds, § 471; Fry, Spec. Perf. § 693; Wat. Spec. Perf. § 489. Affirmed.

HODNETT v. STATE.

(Supreme Court of Mississippi. January 21, 1889.)

1. CARRYING WEAPONS-STATUTE IN FORCE.

The Mississippi act of March 9, 1888, amending the law in regard to carrying concealed weapons, changed the character of and the penalties for the offense, so as to render it an ex post facto law as to such offenses committed prior to that date, and left no law in force by which they could be punished. 2. SAME-INDICTMENT.

And an indictment fixing the date of the offense at a time prior to the passage of the act is not relieved by Code Miss. § 3013, providing that no indictment shall be held insufficient for omitting to state the time at which the offense was committed, where time is not of the essence of the offense, nor for stating the time imperfectly, nor stating the offense to have been committed on a day subsequent to the finding of the indictment, or on an impossible day, or on a day that never happened.

Appeal from circuit court, Oktibbeha county; L. E. HOUSTON, Judge. Frank A. Critz, for appellant. T. M. Miller, Atty. Gen., for the State.

ARNOLD, C. J. Appellant was indicted in May, 1888, for carrying a concealed weapon in January, 1888. He moved to quash the indictment, because the act with which he was charged was not an offense at the date of its alleged commission, and there was no law by which such act, committed at that date, could be punished. The motion was overruled, and the defendant was convicted, and appealed. The act of March 9, 1888, amending the law in regard to carrying concealed weapons, changed the character of and the penalties for the offense in such manner as to render it an ex post facto law as to such offenses committed prior to that date, and it left no law in force by which they could be punished. The effect of the act was that carrying concealed weapons before its passage was no longer an offense under the laws of the state,