troversy, by playing at a game, called faro, or at a faro bank, owned and kept by the defendants Mardis and Bull, in the town of Washington, in this state, that after the complainant had played for some time and lost $100; he quit play, but was prevailed on to continue, in order to keep John Branch at play, that he, the complainant should be considered as playing for nothing; that he did continue to bet, under this understanding, and lost $300 more; that he then quit, and paid the $400; that some time after Bull called on him for his note, and requested it should be made payable to John Branch. McAuley objected to giving his note, but was prevailed on to do so, for reasons assigned in the bill; that he was sued at law, in the name of Branch, plaintiff, (use of A. Mardis who obtained judgment thereon.)

Mardis, Bull, and Branch are made defendants to the suit in chancery. It does not appear that Bull ever answered the bill. Mardis and Branch answered, and there is a general replication. After this, McAuley, the complainant died, Branch administered on his estate, filed a bill of revival, and the cause proceeded to a final hearing on the bill, answers and several depositions, whereupon the Chancellor decreed a perpetual injunction, and Mardis appealed.

The cause now stands for hearing, on its merits, de novo.

The counsel for Mardis objects, 1st. to the deposition of Branch, on the ground of his interest, he having become McAuley's security in a forthcoming bond given in the case, and 2d, to the answer of Branch, being used or considered, so as to affect the interests of Mardis, who is his co-defendant; but we are not inclined, now to settle the practice on this point, as the court finds in the record sufficient evidence, to sustain the complainants cause, independent of Branch's testimony.

The note in question was made by McAuley, payable to John Branch. It does not appear that Branch was a party to the note by any act of his, not even by his endorsement. How then did Mardis become the proprietor thereof? It must have been by the mere act of delivery thereof to him by Bull. What did Mardis give for this note? We have no evidence of the consideration paid by him to Bull for this note, other than that of Mardis himself. He does not shew any authority for using the name of John Branch as a plaintiff at law; Branch can only be considered

as a fictitious payee. Bull has not answered the Bill of McAuley, and we have no account of him, since he obtained the note from McAuley. Mardis does not deny that the note was given for a gaming consideration, a fact which is positively and particularly set out in the bill, as filed and sworn to, by McAuley; but Mardis seeks to avoid this point, by stating, that when he showed this note to McAuley, he acknowledged its justness, and promised to pay it. This being a matter in avoidance, a new and distinct fact, first stated in the answer, requires proof, legal proof, inasmuch as McAuley has had no opportunity to answer it.

There is also abundant proof of gaming among all these parties about the time the note was given. There is much circumstantial evidence to support the allegations in the bill; but none to support the answer of Mardis.

It is contended however, on the part of Mardis, that this defence should have been made at law; that when the suit on the note was pending at law, the defendant at law might have sustained his defence, either by wit nesses, if he had them, or by a bill of discovery. To this it is answered, that our act of assembly has given the court of chancery jurisdiction, in all cases of gambling consideration, to sustain a bill for discovery, or to enjoin judgments at law: Rev. Code, p. 326, Sec. 22, that the defendants not having pleaded the judgment at law, or demurred to the complainant's bill but having answered and gone to trial on the facts and equity of the case, it is too late now, to rely on the trial at law, in bar of the relief sought by the bill. The court sustains this latter view of the case, and are fully supported by authorities from other courts, and by decisions repeatedly had in this court, and especially by the case of Erwin and Wright vs. Ben. Roach. There is no doubt of the jurisdiction of this court, since the passage of the act above cited, in cases of gaming consideration; and he who would question its exercise, in any given case must shew the reason why the court will not exercise it. Has this matter, of gaming consideration ever been enquired into, or adjudicated in a court of law? If it has, why was it not pleaded? If it has not, then, on a proper case being made, by bill, answer and depositions, the court will in this, as in other cases, decide on the issue joined between the parties

We are entirely satisfied, that the decree of the chanceller is correct, and the same is affirmed, at the costs of the appellant. Judge Black dissents.

R. MOORE APP T. vs. THE JUDGE OF PROBATE OF ADAMS COUNTY. The Probate Court has power to enforce obedience to its orders by an attachment. OPINION OF THE COURT.--BY THE HON. EDWARD TURNER. This is an appeal from the decision of the judge of probate of Adams county, ordering an attachment against Robert Moore, Administrator of John Orr, deceased, to compel him to comply with an order of distribution of the estate of said deceased, which had been previously made. The only point raised for the consideration of this court, is, whether the Probate court has the power to enforce obedience to its orders and decrees by attachment? We entertain no doubt that the court has that power, and that it is expressly given by the provisions of the Probate law, passed Nov. 26, 1821. Rev. Code, p. 27, sec. 7, 8, 9, 42, 75, 95, 135.

Judgment affirmed.

The other Judges concur.

JOHN COLLINS vs. MARTHA SPEARS, ADMX., &c. of R. H. SPEAR, DEC'D. It is error to appoint a widow administratrix of her deceased husband, if she is a minor. OPINION OF THE COURT- -BY THE HON. EDWARD TURNER. It appears by the record before us, that the probate court of Wilkinson connty, granted to Martha Spears, widow of R. H. Spears deceased, letters of administration on his estate, in April last. It also appears that she was then a minor, under twenty-one years of age, but in her twenty-first year, and is now of full age. The appellant, Collins, applied to the court

to revoke her letters aforesaid, on two grounds; first, because she was under twenty one years of age; and secondly, because the deceased resided and died in the county of Amite. The probate court refused the application, and Collins appealed from that decision to this court.

On a careful examination of the orphan's court law, and the general law on the subject, we are satisfied that the court erred in appointing a minor, administratrix, although she was widow of the deceased. Administration should have been granted to some other person during her minority. On her arriving at full age, she would then have been entitled to the administration.

On the second point, the court is of opinion, that, under all the circumstances detailed in the evidence in the record, the probate court of Wilkinson County had jurisdiction of the case; but from the error aforesaid, the judgment of the court must be reversed, and the letters of administration granted to the appellee are revoked.

The other Judges concur.

WILLIAM FATHEREE vs. OBADIAH FATHEREE.

Where an individual dies intestate, leaving no wife or descendants or brothers of the whole blood, the brother of the half blood inherits his estate, real and personal.

OPINION OF THE COURT-BY THE HON. EDWARD TURNER. This case presents but a single point for the consideration of the court. The plaintiff claims a distributive share of a deceased brother's estate and has sued for it. He is a half brother of the defendant, and claims as an heir at law of Reding Fatheree, their brother, who died intestate, leaving, neither wife or descendants. The question arises under our statute of distributions, the language of which is this: "there shall be no representation among collaterals, except with the descendants of the brothers and sisters of the intestate; and there shall in no case be a distinction, between the kindred of the whole and half blood, except the

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kindred of the whole blood in equal degree shall be preferred to the kindred of the half blood in the same degree:" Rev. Code, p. 41, sec. 50.

By the common law, the kindred of the half blood could not inherit real property. Our law has established a different rule. We are of opinion, that among collaterals, such as brothers and sisters, those of the whole blood shall be preferred to those of the half blood-but if there shall be no collaterals of the whole blood, but of the half blood, then the half blood collaterals shall inherit, and the rule is the same both as to real and personal estate-judgment for the defendant. The other judges concur.

E. VIGNIAU, USE &c. vs. WM. H. RUFFINS EXR.

A promise upon a sufficient consideration made to one, to pay the debt he may be owing to another is sufficient to the third person on which to recover against the promisor.

OPINION OF THE COURT-BY THE HON. HARRY CAGE. This was an action of assumpsit, in which the plaintiff declared specially that one Robert McCombs was indebted to the plaintiff in the sum of $832; to secure the payment of which McCombs had executed to plaintiff a mortgage of three certain tracts of land, which lands were afterwards sold by McCombs to defendant's testator; and that in consideration of McCombs having paid said testator the said mortgage of $832, then owing to the plaintiffs, defendant's testator, promised McCombs by his undertaking in writing to take up said mortgage, &c. which the plaintiff averred by inuendo, was a promise to pay him the said sum of $832, for which the mortgage was given. The declaration also contained the common counts for money had and received, paid, laid out and expended.

The plaintiff in the court below, offered in evidence the mortgage executed by McCombs to plaintiff, and also the following written assumpsit by the defendant's testator, to wit:-"I hereby obligate and bind myself to take up a mortgage Edward Vigniau has, on three certain tracts of land, which Robert McCombs mortgaged to said Vigniau to secure him