Source: Reports Of Cases Argued And Determined In The High Court Of Errors And Appeals Of The State Of Mississippi
Written: 1839

Gamble et al. v. Trahen.

pages 32-33

It is immaterial whether the clerk subscribe his name to the process himself, or suffer another to do it for him. If it is issued with tbe clerk’s consent and approbation, it is sufficient.

The 22d rule of this court provides that, "whenever a party shall rely on an excess in the calculation of interest or damages, &c., a true calculation shall be presented to the court, in writing and figures, with a certificate by some counsellor not interested in the cause, that the calculation is correct, and no such error will be noticed, unless so presented to the court."

ERROR to the circuit court of Hinds county.

This cause was tried at the May term of said court, 1837.

The defendant filed a plea in abatement, alleging that the writ was not signed by the clerk of the court, in his own hand, nor by any other person authorised by law to sign the same. The plea was rejected by the court, which opinion is assigned for error.

It was also assigned for error, that it appeared from the declaration, that the judgment was for too large a sum; it being for 3325 dollars, when it should have been for 3120 dollars.

Mr. Justice TROTTER delivered the opinion of the court.

There are two errors assigned in this cause. 1. It is insisted by the plaintiff in error, that the court below erred in rejecting the plea in abatement; and 2. that the judgment was rendered for too large a sum.

We are of opinion that there is no error on either ground taken. The plea was not verified by a proper affidavit, but if it had been, it was a nullity on its face. It alleged that the clerk, Green E. Beachamp, whose name purported to be signed to the writ of capias ad respondendum, had not, in fact, signed the same with his own proper hand. It was immaterial whether the clerk subscribed his name to the writ, or suffered another to do it for him. If it was issued by his consent and with his approbation, it was sufficient. The
court cannot take notice of the second objection.

The 22d rule of this court provides that "whenever a party shall rely on an excess in the calculation of interest or damages, &c., a true calculation shall be presented to the court in writing in figures, with a certificate by some counsellor, not interested in the cause, that the calculation is correct, and no such error will be noticed, unless so presented to the court."

The judgment below must, therefore, be affirmed with damages, costs, &c.

Source: Reports of Cases Argued and Determined in the High Court of Errors and Appeals of the State of Mississippi, by Volney E. Howard, Reporter to the State; Vol. III; Containing the Cases for December Term, 1838, and January Term, 1839. NEW ORLEANS: E. JOHNS & CO., STATIONERS’ HALL, 1839.
 

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