Fall v. Commissioners of the Sinking Fund , 3 Miss. 127 ( 1844 )

Mr. Justice Thacheb.

delivered the opinion of the Court.

This was a writ of error to Hinds county. Two points are made by the plaintiffs ip error. 1 st. That the indorsement upon the writ, of the cause of action, represents the plaintiffs below to claim only $2500, with interest thereon, whereas the judgment was for $3500, and interest on that amount.

The record seems irregularly put together, and presents the writ’s indorsement after the pleadings. It however shows the amount of the note sued upon to be $3500, and a sufficient compliance with the statute.

2d. It is objected, that the trial of the case was compelled by the Court below at an earlier day than that at which the case had been set down for trial by the clerk.

The record shows a state of facts in accordance with this objection. The statute, H. & H. 619, s. 27, requires the clerk of circuit courts, under control of the Court, to apportion the causes on the docket for particular days of the term, for trial, and declares that no cause shall be taken up for trial at a day previous to that for which it may be set. The courts are therefore left without a discretion in this particular, and a deviation from the statutory rule is error.

The judgment must be reversed, and a new trial granted.