this case was called at the May term, 1822, of the superior court of Adams county-the defendant below submitted the following affidavit: STATE OF MISSISSIPPI,) Personally appeared hefore the undersigned justice of the peace for said county, Richard Spain, and made oath, that he is a resident and freeholder of the county of Jefferson, and State of Mississippi, and not a freeholder and resident of Adams county, and State aforesaid. RICHARD SPAIN. Sworn and subscribed, this 18th day of March, 1822, before H. TOOLY, justice of the peace. and moved the court to change the venue to Jefferson county, which motion was overruled, and judgement entered for the plaintiff for the amount of the note, interest and costs. To this judgment there was a writ of error sued out, returnable into this court. ASSIGNMENT OF ERRORS. First, That the court overruled the motion to change the same. Second, The court gave judgment for the plaintiff, without ruling defendant to plead, or in any manner hearing his defence to the action. Third, That no judgment by default was taken, or writ of enquiry awarded. The court below erred in overruling the motion to change the venue. See Revised Code, page 67--section 16. Upon the rule recognized in the case of Levi Kendricks, administrator, vs. William Snodgrass, delivered at the January term, 1822, the judgment in this case must be reversed. In that case, it appeared from the record, that no plea had been filed, or judgment by default taken, upon which the judgment of the court was rendered, prerequisites absolutely necessary to authorize the court to render judgment against the defendant below. Judgment of the court below reversed, and venire facias denovo awarded. T. & N. SCUDDER vs. JAMES SEALS. A refusal by a person without colour of title to restore slaves upon the demand of the true owner to his possession, is such a fraud as brings the case within the provisions of the Habeas Corpus act. OPINION OF THE COURT-BY THE HON. POWHATTAN ELLIS. After the death of Nathaniel Scudder, his wife administered upon the estate, and at the sale of the personal property, Margaret Scudder, daughter of the deceased, purchased Diesy and Daniel, the negroes in controvery, for which she executed her promisory note. After the purchase she intermarried with one Thomas Seals, who reduced the negroes into possession, and worked them on the old lady's plantation, but, separate and distinct from her crop. In July 1822, Mrs. Thomas Seals died, and her husband sold the standing crop, and hired the negroes to Thomas Scudder, one of the present defendants. The negroes were hired twice to Scudders, and finally came into the possession of T. Seals, who carried them to the house of James Seals, the plaintiff below; who purchased said negroes. The petition of James Seals, supported by the oath of D. Muse, states that Dicey and Daniel were either stolen or enticed out of his possession, some time in September last. Upon the hearing of the evidence on both sides, the judge had the property restored to the petitioner. From the evidence introduced on the trial below, there cannot be a doubt in relation to the right of property. The only question for our consideration is, whether the petitioner has brought himself within the provisions of the 19 th section of the habeas corpus act, which says:-"If any slave or slaves for life shall be taken or seduced out of the possession of the master, owner or overseers of such slave or slaves, by force, stratagem or fraud, and unlawfully detained in the possession of any other person," &c. The fact of the detention of the negroes by Scudder, when he must have known they did not belong to him, was an imposition upon the rights of the plaintiff below, and will bring the case within, not only the letter, but the spirit of the statute. It was a trick-a stratagem, to deprive the owner of the possession of his property, otherwise they never would have been detained after legal demand being made. Dicey and Daniel being in the possession of Scudder, is evidence they were taken by him, until the contrary appears—and a refusal to deliver them over to the owner, is conclusive that he wished to hold the property without even the colour of title. This amounts, (as I have before stated) to imposition, trick and stratagem, presenting a case liable to the operation of the statute in such case made and provided. I am of the opinion the Judgment of the court below ought to be affirmed. ROBERT WILSON vs. Z. KIRKLAND. An execution cannot issue against the effects of a deceased person before a revival of the judgment against his legal representatives. OPINION OF THE COURT-BY THE HON. POWHATTAN ELLIS. At the May Term of the Circuit court of Adams county, 1822, a judgment was rendered against the defendant upon which plaintiff sued out a ca sa, returnable to the succeeding November term. Kirkland delivered property in discharge of his person, and afterwards entered into a forthceming bond, with Martin L. Thomas, his security. The forthcoming bond was returned forfeited, to November, 1823, and a fifa sued out against the effects of Kirkland, who had died in August, previous to the emanation of the execution. The counsel for Kirkland moved to quash the execution, upon the ground that it had improvidently issued, before the suit had been revived in the name of the legal representatives of Kirkland. This motion was overruled, and the case comes up by bill of exceptions. The execution should have been quashed upon motion, upon the rule of decision laid down in two cases decided in this court. Levi Kendricks, administrator, vs. William Snodgrass, and Nanchnies, administrator, vs. Rabb. In the last case, it was distinctly laid down, that an executio 1b 156 71 464 could not go out against the effects of a deceased person's estate, until his representatives were brought into court. Judgment of the court below reversed, and motion to quash the execution allowed. WM. CHANEE vs. ISAAC H. RIGHT. The rules which govern the circulation of negotiable paper must prevail, and the court cannot mod erate any hardship resulting from these rules in relation to illiterate persons, or graduate the system, so as to adapt it to the various degrees of intelligence. OPINION OF THE COURT-BY CHIEF JUSTICE HAMPTON. This was a motion for a new trial, referred from Amite circuit court. Though at first strongly inclined to overrule the motion, believing that substantial justice had been done by the verdict, yet, as it is so manifestly in violation of the law regulating the accountabilities, resulting from the circulation of negotiable paper, we have felt bound to grant a new trial. We have witnessed the great hardship produced by the application of the strict law merchant, to the transactions of plain illiterate men in the country, who take and transfer notes without any reference to the strict conditions imposed by the law governing such transfers. But we cannot well graduate the system, and bring it in adaptation to the various degrees of intelligence and facilities in different parts of the country, and perhaps we have more to dread, from untried innovations, than from unequal, but known and settled principles. Motion for a new trial sustained. CALVIN BRADLEY vs. THE STATE. A husband may be convicted of an assault and battery upon his wife. By the ancient common law, the husband possessed the power of chastising his wife. OPINION OF THE COURT--BY THE HON. POWHATTAN ELLIS. This cause was tried in the circuit court before the honorable judge Turner, at the April term of 1824. The defendant was indicted for a common assault and battery, and upon his arraignment, pleaded not guilty, -son assault demesne, and that Lydia Bradly was his lawful wife &c. Issue was taken upon all the pleas. After the evidence was submitted, and before the jury retired, the counsel for the defendant moved the court to instruct the jury. If they believed the person named in the bill of indictment, and upon whom the assault and battery was committed, was the wife of the defendant, at the time of the assault and battery,-that then and in such case they could not find the defendant guilty. The court refused to give the instructions prayed for by the defendant, and charged the jury, that a husband could commit an assault and battery on the body of his wife, to which opinion of the court, a bill of exceptions was filed, and the case comes up by writ of error upon petition. The only question submitted for the 'consideration of the court, is, whether a husband can commit an assault and battery upon the body of his wife. This, as an abstract proposition, will not admit of doubt. But I am fully pursuaded, from the examination I have made, an unlimited licence of this kind cannot be sanctioned, either upon principles of law or humanity. It is true, according to the old law, the husband might give his wife moderate correction, because he is answerable for her mis behaviour; hence it was thought reasonable, to intṛnst him, with a pow er, necessary to restrain the indiscretions of one, for whose conduct he was to be made responsible. Strange, 478, 875; 1 H. P. C. 130. Sir William Blackstone says, during the reign of Charles the first, this power was much doubted.-Notwithstanding the lower orders of people still claimed and exercised it as an inherent privilege, which could not be abandoned, without entrenching upon their rightful authority, known and acknowledged from the earliest periods of the common law, down to the present day. I believe it was in a case before Mr. Justice Raymond, when the same doctrine was recognised, with proper limitations and restrictions, well suited to the condition and feelings of those, who might think proper to use a whip or rattan, no bigger than my thumb, in order to inforce the salutary restraints of domestic discipline. I think his lordship |