Gamble v. Trahen , 4 Miss. 32 ( 1838 )

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.