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the negroes of complainant home in his own possession, and had paid for them, and complainant along with them, and laughed." William Benis states, that he heard defendant say, he "had taken the negroes and other property of complainant into his hands, to secure it for him, as it was his intention to befriend him." After this exhibition of proof, it is impossible for the mind to remain in doubt, of the true nature of this transfer that it was made, not for valuable consideration, paid or to be paid, but without consideration, under the influence of misplaced confidence and credulous simplicity, is abundantly obvious; and the appeal to this court by the plaintiff for relief, and the exertion made by defendant, to resist that appeal, afford satisfactory evidence, that so far from fulfilling his assurances of good faith to the grantor, the defendant meditated a blow, prostrating at once all the integrity of private faith, and the long jeopardised rights of complainant.

Is there no energy in the whole compass of chancery power, which can afford to the plaintiff the protection he implores? The evidence satisfactorily proves the statement in the bill, in regard to the perturbation of mind plaintiff was subject to at the time of the transfer; some of the wit nesses considered it so great, as to have amounted to a partial derangement; nor are we to wonder at the effects, when we are told, that the cause was family discord, adequate to the production of results, more awfully melancholy, than the condition of complainant.

It is manifest, from a consideration of all the facts, that plaintiff acted in this affair, under the influence of an exigency, of afflictive domestic circumstances, which, connected with great imbecility of mind, rendered him an easy dupe to the treachery of proffered friendship. Though there is not that particular relation between the parties, which presupposes, on the one hand, an ascendancy, which, when impelled by self interest, was capable of exerting undue influence, and on the other, the habitual exer cise of implicit confidence and passive acquiesence, which, taken in connection with great imbecility of mind, would, as in the case of Lord Southhampton, justify relief against voluntary conveyances, obtained under such circumstances, yet we consider the great distress of mind plaintiff was in, and the proffered assistance of defendant, as circumstances not unworthy the consideration of the court. Vide Pickett vs. Loggan, 14

Vesey, 234. In first Maddox, 211, the author says, "If a conveyance by lease and release, or bargain and sale has been obtained, by means, which, in a court of equity, have the character of imposition, fraud, op pression, or undue advantage, which indeed may be all comprehended, under the general term fraud, a fine constituting a part of that conveyance, which is so affected, whatever may be the effect at law, is no bar to relief in equity. The person deriving title under it, is a trustee, and the species of relief is by directing a re-conveyance;" and cites the above case from 14 Vesey, with many others. As to the difficulties said to arise in embarrassment of the court, from the statute 29, Car. II, it is considered, that if nothing be said in regard to its being in force in this country, farther than its provisions have been adopted or re-enacted by our own legisla*tures, or of its provisions so far as they relate to trusts, being inapplicable to personality, it is sufficient for the present case to adopt the language found in Roberts' on frauds, page 102:-"That whenever the declaration of a trust has been presented by fraud and deceit, or whenever the creation of a trust has offered itself as the means of frustrating fraudulent contrivance, and affording substantial justice to the victim of another's artifice, courts of equity have not suffered the letter of the statute to embarrass the relief, and to protect what it was framed to prevent." Thym vs. Thym, 1 Vern. 290.

In every point of view, in which we have examined this subject, we feel fully persuaded that it becomes our duty to consider defendant as holding the contested property, and its increase, in trust for plaintiff, and to decree a re-conveyance thereof, by those who represent him, and if it would be available to complainant, an account of the profits since the delivery of the property under the sale. But in justice to those who have labored for complainant, in maturing his cause for hearing, and who would else be uncompensated, he must take this decree encumbered with his own costs. Judge Black concurred.

WILLIAM MULLEN vs. WILLIAM A. JELKS.

In declaring on a written contract, it is not necessary to use the words of the party, but the plaintiff may declare according to their legal effect.

OPINION OF THE COURT-BY CHIEF JUSTICE HAMPTON.

This is an appeal from the circuit court of Lawrence county, where in an action of debt on a bond, there was a verdict and judgment for the plaintiff. It is submitted to us without argument; one party perhaps. content with the time he has gained, and not tenacious of his exceptions, and the other reposing with confidence on his verdict and judgment which are so sacred in the eye of our statute of Jeofails.

By reference to the bill of exceptions, it appears, that at the trial of the cause before the circuit court, the defendant's counsel objected.

1st, That the condition of the bond, which was the foundation of the plaintiff's action, should have been set out verbatim in the declaration, &c.

2nd, That though the plaintiff might not be compelled to set out the condition, yet having undertaken to do it, he should do it in the precise terms thereof. The cause was at issue on the plea of payment only.There being no assignment of errors, we are to suppose that the appellant, so far as he has hopes at all on this subject, relies on these exceptions.

"The usual course of pleading on a bond conditioned for the performance of covenants, is for the plaintiff to declare in debt for the penalty; the defendant to crave oyer, and plead a general performance; the plaintiff to reply and set forth particular breaches; and the defendant to rejoin to those breaches and take issue thereon." Vide case of the Post Master General of the United States, vs. Cochran, 2 Johnson's Rep. 413; 2 Caine's Rep. 230. Or the plaintiff may proceed in the first instance to set out the condition, "and assign breaches specifically, and in such case a plea of general performance, held insufficient; but the defendant should answer each breach, when, how, and where he performed the covenant on

which it is assigned." 2 Johnson's Rep. 413. Our own statute in regard to the assignment of breaches in all actions on bond, &c. presupposes a case where the plaintiff hath not in the first instance assigned the breaches in his declaration; for its language is, in section 55, circuit court law, page 117, of Rev. Code, "where judgment on demurrer, or by confession, or nil dicit, shall be given for the plaintiff, he may assign as many breaches of the covenants or agreements as he may think fit; upon which a jury shall be summoned to enquire of every one of those breaches, and to assess the damages the plaintiff shall have sustained thereby," &c And such was the decision of this court, given at the last June Term, in the case of the Governor vs. Scott, on overrulling demurrer, and sending the cause back to the circuit court.

As to the second error assigned in the bill of exceptions, we think that the correct rule is recognized in the case of Hopkins vs. Young, 11 Massachusetts Rep. 307, "that in declaring on written contracts it is not necessary to use the words of the party, but the plaintiff may declare according to their legal effect."

I would remark, however, that so far as becomes necessary to identify the instrument with the recovery had thereon, that defendant may not be precluded, from his plea of "former recovery," or "res judicata," in a second action for the same cause. This rule always supposes a true description of the instrument; and as to all the essential features of such description, to authorize a recovery, there should be the most accurate correspondence between the allegata and the probata. The judgment is very informal, and not in pursuance of the practice, or the statute; but is protected by the broad agisof the act of Jeofails.

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WILLIAM LOURY vs. JOIN LOURY.

A note dated 21st March, 1822, promising to pay a specified sum, being for "money loaned at forty per cent until paid," is sufficiencly explicit as to the agreement of the borrower to pay interest at the rate of forty per cent per annum, and must be enforced under the then existing provision of the constitution of the state of Mississippi.

OPINION OF THE COURT-BY THE HON. EDWARD TURNER.

This is an action of debt, founded on a sealed note, made by the defendant payable to the plaintiff, to the following effect, to wit: "On demand, I promise to pay William Loury, or order, the just and full sum of three hundred dollars, the amount is money loaned at forty per cent until paid, bearing date the 21st March 1822." The cause went to the jury on an issue to the plea of payment, verdict for the plaintiff for the amount of the above debt, and damages to the amount of" forty per cent per annum," on the amount of the said debt, from the date of the note until paid. The defendant moved for a new trial, for the following reasons, to wit:

"1. Because the verdict was contrary to law and evidence.

2. Because the jury gave a per centage per annum, greater than that allowed by law, and resorted to construction to do this. Whereas, the party should not be entitled to the benefit of a rule made by himself, and different from the rule made by law, unless the rule in the convention of the parties is not expressed, so as to supersede the necessity of construction, in order to give the party the benefit of a conventional rule with regard to in terest." The constitution of this state, article 6. sec. 10, provides, that "The general assembly shall pass no law impairing the obligation of contracts, prior to the year 1821, on account of the rate of interest fairly agreed on in writing, between the contracting parties for a bona fide loan of money, but they shall have power to regulate the rate of interest, where no special contract exists in relation thereto." This provision in the constitution was in force at the date of the above note, and the only, question in this case is, whether the note in question bears interest at the rate of forty

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