ia Equity might discharge his liability, would not the plaintiff be taken by surprise, and manifest injustice be done under such circumstances? for there is no doubt, but that the surety would conceal the nature of bis defence, knowing that it would be let in under the general issue. In every case of this kind, when the laches of the obligee, by way of defence, has been set up as an estoppel at law, the matter has beeen pleaded specially.

Whether the surety has been discharged or not, is a legal question, for the consideration of the court; and not a question of fact for the exclusive deliberation of the jury—for it is the form of the security which must determine the nature of the defence, and not the equitable rights of the parties. In the case of the people against Janson, the ancestor of the defendant, was nothing more than a surety, as appeared upon the face of the bond. But here the ancestor of the present defendant, appears from the promissory note itself, to be one of the joint and several obligors, and under such circumstances, he ought not to be permitted to aver by pleading, that he is simply a surety, and not a principal. See the case of Rees vs. Barrington, 2 Vesey, junr. 512. In the case of the "Trent Navigation Company vs. Harby" 10, East 40-debt on a bond against surety, conditioned, &c. Lord Ellenborough, Chief Justice, said, "I know of no such estoppel at law, whatever remedy there may be in equity."Judgment of the court below affirmed.

Note. The case of the People vs. Janson, et al, cited from 7th Johnson, has been overruled by the supreme court of the United States, in the case of the United States vs. Kirkpatrick, et al, 9, Wheaten, 720. In this case, the late Hon. Jonathan H. Walker, then District Judge of the United States, for the Western District of Pennsylvania, affirmed the doctrine decided in the case cited from 7th Johnson, and declared the surety released by the injurious laches of the Government of the United States; but this decision was reversed by the supreme court of the United States, upon the ground, that "laches is not imputable to the government." This may be the law of England, upon the principle of regal prerogative, but the doctrine which gives here, the government, as a suitor, rights paramount to individuals, does not seem to be consonant to the genius of our institutions. The contrary principle, and in a question of suretyship, was sustained in the very able opinion of Judge Porter of the supreme court of Louisiana. That distinguished civilian, says: "In relation to the consequence of giving time without the consent of the surety, I have considered the case precisely as if the State of Louisiana was an individual, for I understand her rights in matters of this kind, are neither greater or less. There is no single principle of a free constitutional government, which more challenges applause, or brings with it more advantage to the citizen, than that which makes society in its collective capacity, bound by those laws which it enacts for the direction of each individual composing it, and compels the sovereign power to be just from necessity, rather than from election." 4 Louisiana Reports, 413. The principle thus eloquently defended by Judge Porter, constitutes one of the main pillars on which the fabric of civil liberty reposes. If the government of the United States, may, as a suitor, release itself from the ordinary obligations imposed upon individuals, upon grounds of supposed "public policy," it may, upon the same principles, demand of its judicial tribunals the sacrifice of all individual rights, as a burnt offering upon the altar of state necessity. That "public policy" is most glorious and expedient, by which the government, in contests with the citizen, subjects itself to the controul of the same laws, and thus, by the justice of its career, entwines itself inseparably with the affections, and sustains itself by the power of a free and happy people...

THOS. M. SMITH USE &c. vs. HOWEL W. RUNNELLS.

A promisory note indorsed specially, cannot be given in evidence to support an action in the name of the original payee.

Possession of a note payable to bearer, or of a note payable to order, and endorsed in blank, is prima facie evidence of ownership of the note, but if the endorsement be special, the suit must be in the name of the last endorsee. After a special endorsement, if the note comes again into the possession of the payee, he must, in an action at law, show a transfer from the last endorsee, or the jury will be instructed as in case of an non suit.

OPINION OF THE COURT--BY THE HON. POWHATTAN ELLIS.

Thomas M. Smith for the use of E. Gibbs, instituted an action of assumpsit against Howell W. Runnells, in the Laurence superior court.-Plea non assumpsit issue, and verdict for the defendant.

When the cause was tried at the October term, 1821, the plaintiff's counsel offered in evidence, the defendant's promissory note to Smith, endorsed specially by Smith to Gibbs for a valuable consideration. To which evidence the defendant's counsel objected, upon the ground, that a promissory note, with a special endorsement, could not be given in evidence to support an action, brought in the name of the original payee to the use of the last endorsee. The court sustained the objection, and a bill of exceptions was filed, and being made part of the record, a writ ef error was sued out returnable to the last term of the supreme court. From the slight examination I have been able to give this case, I am satisfied the note was properly rejected as evidence to substantiate the claim of Smith vs. Runnells, when it appears from the face of the instrument, Smith had by a special endorsement, for value received, parted with all interest in the said note. Under such circumstances, the possession of the note will not be evidence of property. If this evidence had not been ruled out, and a judgment was taken thereupon, could the present defendant, in a suit instituted by Gibbs upon the same note, plead the former judgment and recovery in bar of the plaintif's right of action? I think not, because the plea in bar must be founded upon the record of the former recovery, and if there be any variance between the plea in bar and the right of the plain

tiff to recover, as set forth in his pleadings, he must succeed in getting a verdict. The defendant executes a promissory note to Smith on the 23d September 1819, promising one day after date to pay the sum of two hundred and forty dollars. On the twenty-fifth day of January, 1820, Smith, the payee transfers by special endorsement his interest in the note, to E. Gibbs, for a valuable consideration. The right of property in the note evidently being in Gibbs, he no doubt could recover, and any plea in bar founded on the former recovery, upon a demurrer, would be overruled, and judgment entered for the plaintiff. There are two modes of transfering notes, first by delivery, when they are made payable to bearer, and in every case of this kind, possession will be considered as evidence of a right of property in the note; secondly, when they pass by endorsement, upon being made payable to A B or order, possesion under a blank endorsement, will be prima facie evidence of a right. But if it be a special endorsement, no one but the last endorsee, or his known and acknowledged agent, can maintain an action, and it was upon this last principle the case of Dugon et al, executors of Clark vs. the United States, was decided, 5 Wheaton, 173. By the special endorsement in this case, the endorser, Smith, parts with all his right to the note, and consequently discharges the obligor, so far as it relates to him, and if the note comes into his possession again, he must, in an action at law, shew a transfer and satisfaction, from the last endorsee, or the jury will be instructed as in the case of a non suit. See the case of Peacock vs. Rhodes, Douglas 611. How far the plaintiff would have been allowed to go, in striking out endorsements, at or before the trial, is not at this time for our consideration. In argument, it was observed, the court was bound down to the exceptions taken at the trial below, but this is not our conception of the law. In writs of error, we have a right to examine the whole of the record, and if we discover errors, upon which a judgment should not have been rendered, the judgment will be reversed, and the cause sent back upon a venire facias de novo. This principle has been repeatedly sanctioned by the judges in this court. I am of the opinion, the payee of a promissory note, transferred by special endorsement, who may come to the possession of said note again, cannot maintain an action to the use of the endorsee against the maker, when it appears from the face of the instrument itself, the right to sue is in the endersee, and not with the holder of the note.

T

HARMAN M. RUNNELS vs. THE STATE OF MISSISSIPPI.

The Constitution of the State of Mississippi, is paramount to the authority of the legislature, and it is the duty of the judiciary to declare void, any legislative enactment which may be repugnant to the provisions of the constitution.

The infraction of the constitution should be clear and obvious to authorize the court to declare a legislative enactment unconstitutional. The act of the legislature of this state, abolishing the office of clerk of the Probate Court, and directing the judge of that court to discharge all the duties required of the clerk, is unconstitutional.

The clerk of a court, can be removed in no other manner, than that prescribed by the 11th section of the 5th article of the constitution of this state.

OPINION OF THE COURT-BY THE HON. POWHATTAN ELLIS.

At the September term of the circuit court of Lawrence county, 1822, -on motion of the Attorney General, it is ordered, that a rule be entered, requiring Harman M. Runnels, late Register of the Court of Probates for Lawrence county, to shew cause on Friday next, why a mandamas should not issue, commanding him to restore the papers belonging, or in any wise appertaining to the late Register's office, to Charles Lynch, Esq. Judge of Probate of said county.

From an inspection of the record, I discover the rule was not made absolute until the spring term of 1823. Some time after which, a writ of error was sued out, returnable into this court.

The only question now to be considered is, does the act of the 30th of June, 1822, contravene the constitution of this state, so far as it relates to the rights of the present plaintiff. In the opinion, which will be expressed on this momentous question, I cannot feel insensible either as it regards the "magnitude of the case," or the delicacy of our situation. The constitutionality of a legislative act, forms the subject of our enquiries, and on more occasions than one, I have expressed the diffidence and reluctance, and consequently "the caution and circumspection," with which I approach such investigations. I have repeatedly said it was unwise and inexpedient to declare laws unconstitutional, where there is any doubt, and when they might be reconciled to the spirit, if not to the letter of the constitution: But, the people of this state have formed a para

mount rule of action for themselves, and they have declared, the powers of the government of this state, shall be divided into three distinct departments, and each of them to be confided to a separate body of magistracy: to wit, those which are legislative to one-those which are executive to another, and those which are judicial to another.

"No person or collection of persons, being of one of those departments, shall exercise any power, propererly belonging to either of the others, except in the instances hereinafter expressly directed or permitted." Upon this court then, devolves the high and important duty, of rescuing from legislative violation, those contracts, which have their origin in the constitution, and are placed beyond the reach of legislative control and interference.

Before I go into the consideration of the case now before us, it may not be amiss to review the case of the State vs. Dillihunty, and state the principles upon which that resolution was formed. I wish it to be distinctly understood, I am not desirous of overturning the settled opinions of this court, for nothing I conceive, would be more dangerous and pernicious in its consequences, than for this court to open their solemn determinations, with that kind of facility, calculated to encourage litigation. Even if some of them be incorrect, it is better they should remain fixed and immutable, than we should declare to the community, what may be the law of the land to day, may be changed to-morrow. In the fall of 1821 the legislature passed an act of assembly creating the probate court-Judge Prosser who was appointed to fill the office in Wilkinson county, proceeded under the 11th section of the 5th article of the constitution, to appoint Cato West as his clerk-and when he demanded the papers pertaining to this newly organized court, Dillihunty, the clerk of the old county court refused to give them up. A rule ni si was applied for, directed to Mr. Dillihunty, to shew cause on a certain day, why a peremptory mandamus should not issue-but, the judge doubting as to the law and the rule of decision, referred the case to the supreme court at Columbia. The case was then argued in the absence of authorities, and the court, after consultation, made the rule absolute,-upon the ground, that the legislature had a right to establish such a court under the 7th section of the 5th article of the constitution, and as Mr. Dillihunty was not known to the law as a