tice shall dismiss the cause, and the plaintiff pay the costs. The plea of the general issue would, in this case, have put the title set up in the declaration in issue; and unless the plaintiff admitted it on the trial, the jurisdiction would have been takən away. From the sections referred to, it appears that the trial of questions of title is what is inhibited, when they arise in the actions of which jurisdiction is given. The term trial is usually applied to the investigation of facts in question or dispute between the parties to a cause. By demurring, the defendant admitted the facts set out in the declaration, and raised the question of law as to their sufficiency to maintain the action. The plaintiff's title as he set it out-the facts constituting it which he alleged as the foundation of the suit-were conceded. True, he assigned as a cause of demurrer the want of jurisdiction. To take it away, however, he should have resorted to another course, and one which would have put the title in dispute. The statute evidently intended to take away the power to hear evidence and determine upon the various intricate and complex questions which might arise upon the trial of a disputed title. Where, upon a demurrer to the declaration, a mere question of law arises, a review of any decision made is easily and without difficulty had under the provisions of the statute.

2. It is insisted, in the second place, that the action on the case would not lie upon the facts alleged in the declaration. It is a general principle of the common law, that whenever the law gives a right, or prohibits an injury, it also gives a remedy by action; and, where no specific remedy is given for an injury complained of, a remedy may be had by special action on the case. This action, says Blackstone, is an universal remedy, given for all personal wrongs and injuries without force: 3 Bl. Com. 122; 1 Chit. Pl. 83, 84. In the case of Yates v. Joyce, 11 Johns. 136, A., being the assignee of a judgment against B., had taken out an execution and levied upon a lot of land upon which the judgment was a lien; and C., knowing the premises, and, as charged in the declaration, with intent to injure the plaintiff, removed buildings from the said lot, and in consequence thereof, the amount for which the lot sold was diminished, and the plaintiff, the defendant having no other property, was thus far deprived of the benefit of his judgment. Upon a demurrer to the declaration stating these facts in substance, the action was sustained, upon the principle above referred to.

In this case, the plaintiff, by his purchase, had acquired an

inchoate right to the land, subject to be defeated by payment, by the mortgagor, or of the purchase money, with ten per cent. interest, in six months. If not so redeemed, he had a right to have the estate which he purchased, his title to which would then be consummated. The trees growing on the land were a part of that estate, being a part of the realty. The acts are charged to have been done wrongfully, and with intent to injure the plaintiff, and the action, it seems to me, was well brought. The deed, while it was in the register's hands, between the time of the sale and the expiration of the time for redemption, was in the nature of an escrow; and, if not defeated by redemption, related back to the time of the purchase, at which, under the statute referred to, it bore date: 4 Cru. Dig. 31; 3 Rep. 35; Swift's Dig. 123, 124, 179; Belden v. Carter, 4 Day, 66 [4 Am. Dec. 185].

If a deed is delivered on condition, and the grantee dies before the performance of the condition, yet upon its performance, the estate becomes vested. "For there was treditio inchoata in the life of the parties, et postea consummatio existens by the performance of the condition." In the state of New York, the doctrine of relation has been carried much further than this, as will be found in the case of Jackson v. Ramsey, 3 Cow. 75 [15 Am. Dec. 242], and cases there cited. In Heath v. Ross, 12 Johns. 140, between the date of a patent, and its passing the proper office, a quantity of timber was cut on the premises granted by the patent, and trover brought by the patentee and sustainedthe grant being held to relate back to the date of the patent. In this case the doctrine is clearly applicable, and as the purchaser was not in the possession, that being held by one of the defendants, the action was properly case.

3. But it is said, that if the action would lie at the common law, that law is not in force in this state as a means of civil remedy. This is a somewhat startling proposition to be seriously urged at this time, when this court, as well as the circuit courts, have been adjudicating common law actions, upon common law rules and principles, since their organization under the state government; and also, the territorial courts had done so previously, from the organization of the territorial government under the acts of congress and the ordinance of 1787. It can require but a few moments' consideration.

It is contended, first, that the state constitution abrogated the common law, which, it is conceded, was previously in force. There is no provision in the constitution to that effect; but, on

the contrary, in the second section of the schedule annexed to the constitution, the laws in force are retained until they should expire by their own limitations, or be altered or repealed by the legislature. And it is a general principle, that, upon a change of government, laws in force continue until changed or abrogated. But it is said, that if not repealed by the constitution, it is by the revised statutes of 1838. Not so. In the repealing acts therein contained, the statutes of which the subjects are revised or re-enacted, or which are repugnant to the provisions of the revised statutes, are repealed. And so far as the constitution and the government established by it, or the provisions of statutes, are inconsistent with, or repugnant to, the common law, they supersede it. In almost every part of the revised statutes of 1838, relating to rights and remedies, the common law is incidentally or otherwise recognized; and more especially is it, in the chapters relative to the circuit and supreme courts, particularly section 4, of the former (p. 381), and sections 2, 3, and 4 of the latter (pp. 357, 358). I am of opinion, then, that there is no error in the judgment of the court below, and that the same should be affirmed.

Judgment affirmed.

STATUTES IN PARI MATERIA SHOULD BE Construed TogethER, as if they were one law: McCartee v. Orphan Asy. Soc., 18 Am. Dec. 516; Montesquieu v. Heil, 23 Id. 471; Lorimier v. Lewis, 39 Id. 461.

MORTGAGEE PURCHASING UNDER A FORECLOSURE MAY MAINTAIN TRESPASS against a lessee of the mortgagor who enters and cuts the growing crops, the lease being made subsequent to the mortgage: Lane v. King, 24 Am. Dec. 105, and note.

DEMURRER TO A PLEADING ADMITS FACTS therein set forth as true: Sleeth v. Murphy, 41 Am. Dec. 232. So, also, a demurrer to evidence admits every fact which the jury might properly infer from the evidence: Mackinley v. McGregor, 31 Am. Dec. 522; but a demurrer to evidence is an unusual and antiquated practice, calculated to suppress truth and justice, and is allowed or denied by the court in the exercise of a sound discretion: State v. Soper, 33 Id. 665.

CASES

IN THE

HIGH COURT OF ERRORS AND APPEALS

or

MISSISSIPPI.

PLANTERS' BANK v. SHARP.

[4 SMEDES ANd Marshall, 75.]

WHEN BANK, IN ITS DISCOUNTS, RESERVES GREATER INTEREST than is allowed by its charter, the contract falls within the general usury law. It is not void. The bank may recover the principal sum lent, but without any interest.

PARENT BANK MAY RATIFY ACT OF BRANCH BANK, where the latter dis counts a note without a competent board of directors.

RULE THAT SUBSEQUENT CONFIRMATION IS EQUIVALENT TO PREVIOUS COM. MAND applies as well to corporations as to individuals.

ERROR from the Lawrence circuit court. the case.

The opinion states

Quitman and McMurran, for the plaintiffs in error.

Adams and Freeman, contra.

By Court, CLAYTON, J. This was an action of assumpsit brought by the Planters' Bank upon a note executed by the defendants in error, payable at the branch of said bank, at Monticello. The note was given in renewal of one which had been previously discounted. Two grounds are assumed in the defense. One, that the transaction is tainted with usury, and that the note is therefore void; the other, that the note was not discounted by a competent board of directors, and is for that reason likewise void. Both these grounds were sustained by the court below in its charge; a verdict was given for the defendants, discharging them from payment of the note, a new trial moved for and overruled, and the case brought to this court.

The first point was very elaborately argued by counsel, and

received very deliberate consideration from the court, in the case of the Commercial Bank of Manchester v. Nolan, 7 How. 508. It was there holden, by a majority of the court, "that when a bank in its discounts reserves a greater interest than is allowed by its charter, the contract falls within the general usury law, it is not void; the bank may recover the principal sum lent, but without any interest." I can add nothing to the reasoning contained in the opinion concurred in by two members of the court on that occasion. I have seen no reason to change that opinion, and repeat my adherence to the principles it declares. As regards the other point, the record shows that the note was given in renewal of one previously discounted, upon payment of one fourth of its amount; that it was accepted by the cashier of the branch bank; but there is contradictory testimony as to whether it was approved by the directory of the branch or not. The jury seem to have found that it was not, and there is no such preponderance of testimony on the other side, as would induce us, upon that ground, to set aside the verdict.

But there is another view of the question, which can not be overlooked. This suit is brought and prosecuted by the bank, by which must be understood the parent institution. By the twenty-seventh section of the charter it has control of the branches. If the note had not been discounted by a competent number of the directors, it was nevertheless in the power of the bank to ratify the act. When so ratified, it became obligatory upon all the parties concerned. The rule that a subsequent confirmation or consent is equivalent to a previous command, is as applicable to corporations as to individuals: Ang. & Ames on Corp. 174; Moss v. The Rossie Lead Mining Company, 5 Hill (N. Y.), 137. In this latter case it was holden, that "where property was purchased for a corporation by two of its officers, who gave several notes in the corporate name for the purchase money, and afterwards the property was claimed by the corporation and converted to its own use; this amounted to a ratification of what the officers had done, and that even if the notes were originally given without authority, the corporation was liable upon them." Here the defendants have got all they contracted for; the bank might have had reason to complain of its agents, but surely the defendants, after they have procured the agreement to be executed, and after it has been ratified by the bank, can not object a want of power in the agents. Where the contract has been executed, the general rule does not apply: 2 Kent's Com. 291; The Mayor of Stafford v. Till, 4 Bing. 75;