The weekly Panola star. [volume] (Panola, Miss.) 1857-1881, 1866-12-08

NJ iadrmem hsss uihsf mHrff,
ItHH #h'ah It4g aHn ls m4A W
W. nm mess ~ ~ ihsi svsgy tni
unftfy conveyance W n haaiulen
Ibe eiihh fbs mmnIna n IN,
sisiaes I'VE plaIntf mskibgalsy
~ tbs pfptefiy undertakes ths ~
'p0f sililily ~ showing ihtt, ntuf
ihs ei fumasnts N fhs taHletilsl
ne ihe ifihmeiioh u one Which ib'
ltN ell hoi sanction
Ib The present eaas the levy ha.
been made M ihe property alleged 4,
hats been Ifndulenily Transferred
and ths plaintiff eomev into eoufi
n equity ~ have the conveyance set
nside ~ q cloud ~ incumbuies ntst
The title, preventing sale n il iot
~ value llis right 10 do ~ seem.
10 be clear for although the property
might he sold In IL present situation
IN The execution at la. yet equity
will not require III, creditor to 4cll q
doubtful " obstfuctsd title NJ law
but will 'ct aside the conveyance, and
remove the distractions 10 fair
snle.--FowlT W. Mct tartney. ~
Mss, bl6i / Am. Lead. Gases, 81,
1h demurrer admits the fraud
charged IL the bill, and in our
opinion ought to have been d sal
lowed, and The defendant required to
answer. The decree will therefore
bs reversed, and the cause remandcd
for such proceedings In the court
below, in conformity with this opin-
ion, as under present circumstances
may be advised.
Isa Tharp vs.. Marsh and Pendle.
don. Error TO Special Court Of
Equity, stating that in the month Of
June, 1865, they employed plaintiff
in error, aud sent him to Simpson
county, in this State, to buy cotton
for them, and furnished him with
goods and money for that purpose,
for which he was To have one-fourth
of the net profits arising from the
sale of the goods and cotton for his
compensation, That said Tharp had
no capital Of his own. That with
the capital furnished by defendants
in error, he purchased and remitted
to them forty-three bales of cotton.
That having reason TO doubt the cor
rectnsss of his dealings, they sent
an agent to demand ten bales of
ginned cotton, and six hundred
pounds of seed cotton, in his possess
sion, and purchased with their money
and goods; also, merchandise to the
value of sixteen hundred dollars,
and large amount Of money, &c.,
belonging to defendants in error,
which the said agent, after demand,
failed to obtain.
They allege that they believe Tharp
owes them about 81, 400, and that he
will dispose Of and remove said prop
erty unless restrained by the order of
said court. That they have termina-
ted any further agency Of said Tharp
for them, and pray a writ of seques-
tration, and for an Injunction, and on
final hearing for decree of specific
performance of said contract in law,
by delivering all of said property to
defendants in error, subject to said
credit Of one-iourth OF the nett prof
its, Is aforesaid, or for its alternative
value, and damages, and for such
other or further relief, DC.
To this petition the plaintiff in
error filed his demurrer-lst, for
want of jurisdiction and 2nd, be-
cause the petition seeks a settlement
Of partnership accounts, and not a
specific performance Of contract in
relation to cotton, or other personal
contracts expressed or implied.
This demurrer was overruled, and
the plaintiff in error filed his answer
denying all the material allegations
Of the bill, as to the ownership Of
the cotton and merchandise men
toned in the petition, and claiming
il rs his own.
Proofs were taken and the cause
submitted for a hearing q d decree
made for petitioners for tie property
and money in the petition claimed, or
its alternative value.
From this decree a writ Of error is
now prosecuted here.
The grounds Of error relied on are
that the court had no jurisdiction.
That the court erred in rendering
decree against the plaintiff in error,
and that the demurrer should have
been sustained.
We think il clear that the demur-
rcr to the petition should have been
sustained. The contract stated in
petition was not Contract for co,-
ton or other personal property" hut
a contract TO engage in speculation
by the sale of goods and the pur-
chase Of cotton from third parties.
The parties to the contract became
partners; neither had the exclusive
right, SO far as the contract shows. to
the possession or control of the cot
ton when purchased. IL j. true the
petiti"n denominstes the plaintiff in
error an agent" but he was also
partner, receiving by the terms Of
the c'n,ract one-four,h of the nett
proceeds uf the sale pf the goods and
cotton for his interest. The petition
does not allege that the defendants
in error were entitled to the exclusive
possession or control of the cntton.
gocds, or other property in cuntro-
versyI but distinctly admits that
their right or property therein is sub
ject 70 the one-fonrth interest of
plaintiff in error.
This petition, therefore, instead oi
being proceeding to eniore the