The Daily clarion. [volume] (Jackson, Miss.) 1866-1888, 1866-12-19
DECISIONS OF THE HIGH COURT
ERRORS AND APPEALS.
APRIL TERM, 1866.
Reported Expressly for the Clarion.
Margaret Q. and A B. Treadweu

| anu a. ~. AACoA"OA
VS..
Mary G. Herndon, Guardian
Error TO Probate Court Of Madison County
Hon. w L. Harris delivered the opinion
of the Court.
! The questions presented in this case arise
out of a motion made in the Court below to
! quash a writ of feri facidS issued from the
Probate Court on the 18th day of October,
| 1865, in favor of the defendant in error
against the plaintiffs, commanding the Sher-
| if to make a certain sum of money therein
specified out of the goods and chattels, lands
| and tenemehtS, and estate of Lawson f. Hen
| derson deceased, in the hands and posses
sion of said Margaret Q. Treadwell and Ann
Elizabeth c. Postell, distributes of the es-
tate of said Henderson, deceased. 1st. Be
cause said execution issued in violation of
| the Stay law"
ID. Because said execution issued against
! the lands of decedent after the discharge of
the administrator, and without revivOr or
| sci. ia. against the heirs, distri butees or
| terre-tenants.
3rd. Because said execution commanded
| the Sheriff to make the costs without stating
| the amount thereof.
4th. Because the execution had been SUI
| perseded and said supersedeas remains I'M
discharged.
5th. Because the decree upon which it
issued was void.
This motion was Overruled upon the
hearing in the Court below, and a Bill of
Exceptions taken and filed, setting out all
| the facts in evidence. The action of the
| Court Overruling this motion, is the error
| complained of here.
1t appears by the record that, ON the 10Th
| day of November, 1860 defendant in error
as Guardian for 3. p. Herndon, recovered d
| judgment in the Probate Court against
Love as administrator of Lawson F. Hem
| derson, deceased That on the 18th of Jan
| uary, 1861 a writ of tet5 tdciGS issued on
that judgment against the administrator.
! That on the 18th day of January, 1861, the
| administrator rendered his final account Gas
| it was then regarded), and was ordered
upon an agreement between him and the
distributes to be discharged That after
wards on the application of Love, the Pro-
bate Court granted an order superseding
said execution, upon the petitioner execu-
ting bond with security. The date of the
order does not appear. That on the 18th of
June, 1861, the bond was executed. No writ
of error appears in the record, but the Sher
iffreturned the execution superseded on the
Goth of June, 1861.
1t further appears that at the April Term,
1861, of said Probate Court, application was
made by Mrs. Postell, and also by A B.
Treadwell for letters of administration de
bOniS non on HendersOn's estate, which has
been continued ever since.
The matter stood thus until the October
Term 1865, of the Probate Court of Madison
County, when the Court, SO far as the record
gives US any information, upOu it's
own motion, without notice to any one
interested, ordered the issuance of
an execution on the original Judgment in
favor of appellee, and against the estate
goods, chattels, lands and tenements, of l.. r.
Henderson, deceased, in possession of said
Treadwell and wife and Mrs. Postell, as dis
fTIlNr Of Il toto
issued as directed, but with no bill of costs
annexed.
1t is first urged by the defendant in error,
that the writ of error, bond and supersedeas
to the original judgment on which this ex-
ecution was founded, were utilities after
the lapse of three years from the rendition
of the decree.
This is not necessarily so the act of linn
itatiOn, Code, p. 401, art. II, limits the time
of the issuance of the writ to three wears
from the rendition of the Judgment or de-
cree, but in this case there is nothing to
show whether the writ of error has been
sued out OF not it may now be pending in
this Court for aught that appears in this
record But again, the act of limitations
was suspended until twelve months after the
war by the act of the 18th of December
1907, p. rs. So that the operation of the
statute could not be invoked if properly
pleaded.
Stlll further answer to this view ia
that the defendant in error could not avail
himself of the statute of limitation on this
motion In the Court below, as a plea in bar
OF writ of error, pending or which might
be pending, in the High Court of Errors and |
Appeals. LII the writ of error had not been
sued out and returned to the High Court in |
proper time, he should have moved for its |
dlsmlssal there, or if it had been filed there |
ne should have plead the statute in that
Court, II 1t had been in force.
Inc case of Butler VS.. Craig, Exrs, 28th
MISS. h. p. $40, only holds that the failure of
the Clerk below to issue the writ of error
within the time limited by the act, will not
avail the plaintiff in error upon ID plea of the
statute IN the High Court; and that his
remedy, II he sustains injury by the negIi-
gehce OF the Clerk in failing to issue it in
time, is against him
1t Is urged further, as to the invalidity of
the petition and bond for writ of error and
Supersedeas In this case, that it was sued out
by Love IN his individual character, and not
as administrator. That the Judgment being
against him as administrator, and he haying
been discharged by order of the Probate
Court, upon rendering his final account, he
was no longer parry defendanf' after his
discharge, and could not therefore applv for
the writ
Both the petition and bond in this case
puTpoft to be his act as administrator The
petition commences in these words. Your
petitioner, Jefferson Love, administrator of
Lawson f. Henderson, deceased. resuectfullv
shows" &c. The bond in like manner re-
cites that, Jefferson Love administrator of