The daily Mississippi clarion. [volume] (Jackson, Miss.) 1866-1866, 1866-05-09


term, B. Harris administrator dc bORls non,
Of E. d. Learned. deceased, had filed an APP
plication for an order to sell the following
real estate, describing the land as in the pre-
vious order7) that citation had been there
upon ordered, aud had been daily published,
.whereupon VI. Barnes, administrator of Ma
son Reynolds, fled objections to the granting
of the order for the sale of the lands above
described lying in Copiah county, which OBJ
jeetions were considered by the court as valid
and sufficient. and il was therefore ordered
by the court, that the application. so far as
II related TO the land in Copiah county, be
dismissed and that the said administrator be
authorized TO sell the town lot in the city OF
jackson.
At June term, 1912, without any further
showing of the insufficiency of the personal
estate, a citation was ordered, and at Sep
TENDER term, $40, a sale was decreed of pant
of lot fourteen in the town of Gallatin.
Then follows in the record the order
made at June term, 1913, already above set
forth, and the order of sale made thereon at
August term, lS43 under which the land in
controversy was sold
To show that full record has not been
transmitted 10 Cepiah county, as required
by the act of the Legislature, plaintiffs gaze
III evidence Transcripts of all the proceed
Ings in the Probate Court of Kinds county
showing that the widow of Learned had
ucEu appointed his dNlllllStIdkilA ~ OGlO-
Der term, 1857 and had administered the
estate until her letters were revoked IL
March, 1899
In May, 1888, she had represented that
the personal estate was insufficient to pay
the debts, and had prayed an order for the
sale of the real estate, but no proceeding
appears TO have been taken upon it. At
January term, 1899, she had made a full re-
port of the debts, and assets of the estate,
SbByrEngr that the rAal and npTSOuql
" Efficient to pay the debts, and there
up6fT=%.sss curt had declared the estate in
solvent. and had appointed commissioners to
receive and report claims. No further step
appears TO have been taken with view TO
the distribution of the estate among the
creditors
The plaintiffs also offered copy of the
bond of Harris as administrator dc boHis non,
certified by the Clerk q the Probate Court
of Kinds county, on + e 22d day of August.
1860 who states in his certificate that the
said original bond is now on file and record
in my Office
The evidence being closed, the plaintiffs.
in pursuance of the agreement, moved the
court to rule out all the evidence on the part
of the defendant on the following grounds,
to-wit:
LIST. The special act of the Legislature for
the relief of Buckner Harris, is unconstitu-
tiOnal and void, being in conflict with see
ton Is, article A, of the constitution of the
State.
ID The said act confers the powers upon
the Judge, and not upon the Probate court
Of Copiah county:
Sd The Probate Judge of Kinds county
did not transfer and transmit to the Probate
Judge Of Copiah full and complete copy of
the record of all the proceedings had in re-
latiOn to the estate of Learned, together
with the original administration bond Of
Harris.
4th The appointment of Harris was void.
because the record does not show any fact
giving jurisdiction to the Probate Court of
Kinds county, to grant administration in
chief to the widow of Learned.
5th. The sale was imperative, because
never reported to or confirmed by the Pro
bate Court.
This motion was overruled. The case
went 10 the jury without instructions, and
verdict having been found for the defendant
the motion made for new trial was like
wise overrUled.
The question Of the constitutional power
of the Legislature to pass the act for the
relief of BUckner Harris" under the opera
ton of which this case has arisen, was eN-
pressly waived on the argument in this
Court, and the objections to the jurisdiction
of the Probate Court of COpiah county 10
decree the sale under which the defendant
holds the land in controversy, We're rested !
entirely on two grounds.
l. The first of these is that the Probate |
Judge of Kinds county did not transfer and |
transmit to the Judge of the Probate Court !
Of Copiah county full and complete copy |
Of the record of all the proceedings had i'm |
Kinds county IN relation to the estate of !
Learned, together with the original admin /
stration bond entered into by Harris
The argument in support of this objection |
is, that the jurisdiction of the Probate Court /
Of Copiah county was derived from the
special act of the Legislature; that the |
transfer of the Jurisdiction from the Probate
Court of Kinds was the execution of Il pow
II created by law; and that such power
must be executed strictly, in the mode point
I'd out 10y the statute; and authorities are
Ited to show that equity viii no. relieve
against the defective execution OF a power |
treated by law. The principle is Of very
general application that, at law, every naked
power, properly so called, must be strictly
executed, and ali prescribed formalities dIl-
Y observed 1t prevails not only between |
private persons, but applies also to the acts
If public officers, as tax collectors and the |
Ike and also to the proceedings of inferior |
,ourts of special and limited jurisdiction
But the question IN the present case is not
ne mere execution of a power, the cOndi- /
ions OF which are ascertained; but whether
he jurisdiction of the Probate Court of Co
nah county over the administration of the
state of Learned, was made, by the statute.
utlrely contingent upon the previous trans
mission to that court of "A full and com
,lete copy of the record of all the proceed
ngs in relation to the estate" previously |
lad in Kinds county.
This depends upon the proper truction |
O be put upon the act. The power of the |
legislature to transfer the administration of |
he estate from Kinds county to COpiah !
ounty, either with or without conditions,
vas not denied in the argument, and could
ardly be successfully disputed An atteu-
i've consideration of the language of the
ct in question, shows clearly that the para
Mount object and intention of the Legisla-
ure was to transfer the administration from
ne county to the other, and that the pro
lSSI0ns in relation to the transmission of /
he record, are only ancillary to the main
ltent, and We're designed to afford the court ]
] Copiah the means of acting intelhgently j
Z the administration. Some foundation
-as necessary to be laid, for the exercise OF
he jurisdiction and the duty of laying that
was deyolved by the act upon
he judges OF the two courts. 1t was made
le duty of one of them to transfer and t
ransmit the record, and of the other TO re a
Give and record it. This duty these officers t
in good faith to discharge. They
ere obliged to determine for themselves in / q
ne first instance, what was required of c
lem. The one did transfer and transmit I
leh transcript as in his judgment fulfilled q
re demands of the law The other received t
, and by an order entered in the minutes l
his Court directed it to be fled for record, b
nd thereby adiudged it to be a compliance 7
it'll the statute. 1t did contain al that re-
ted 70 the administration of Harris, but it .
nitted the proceedings that had taken a
ace during the administration of Mrs t
earned. Il
There is no suggestion that the omission
as willful OF fraudulent. a strict and lit
raj Interpretation of the act. perhaps con- ?
mplated that all these proceedings would l
ave been sent, but failure to do so can s
II be held to oust the court OF the iurisdic- e
On which il was plainly intended TO CO.. d
7 upon it. The argument of the plaintiffs $
,es to the full extent that the omission of v
ngle paper or of a single entry, or any
Tor in tTanscibing any of the proceedings / e
ould render all the acts of the Probate ?
)urt of COpiah county absolutely void a
ough the administration might have been :;
nducted there for years, and the most i'm / II
'rtant rights vested under it. 1t Is graft Ii
ing that our duty does not require US to 4 q
We our sanction to such proposition. We s.
ink, on the contrary, that the Probate | o
,urt of Copiah county become invested | e.
it'll jurisdiction over the administration OF II
e estate of Learned, by virtue of the ope- n
AT its power was not impaired by the | q
Mission of a literal compliance with the / L
rectiOns OF the statute IN reference to the
insmissiOn of the record O
? The second ground of objection TO the u
of the court to make the order II
sale is this; that the petition OF Harris. a
I'd April - l54l, praying an order for the III
lie Of the real estate of Learned, was final Il
dismissed as to the lands in Copiah county al