The weekly clarion., 1866-12-20
DECISIONS or TIE HIGH COURT
or
EitRoRs AND APPEALs.
IfIt1tt)Il
APRIL TERN. 1896
Reported EHPTsssIy for the CIsrIsn.
Margaret q aud A. B Treadwcll)

Of the Court
Tho questions presented in this case arise
out Of motion made In the Court below 20
| quash writ Of Gcri (aoids issued from the
Probate Court on the 18th day Of October,
1865, Ia favor Of the defendant IN error
against the plaintiffs, commanding the bher.
III 20 make a certain snm Of money therein
specified ont 0f the goods and ohattela ldnds
aud fencmoais, and estate Of Lawson 4. Hen
derson, deceased, In tho hands and posses
sion Of said Margaret q Tfcadwcll and Ann
| Elizabeth &. Postell, distributes Of the es-
tate Of said Henderson, deceased. lst BE.
cause said execution issued IN violation Of
| the "stay law"
I'd Because said execution issued against
the lands Of dcccdsnt after the discharge Of
the administrator and without rcyiyOr or
sci. ia. against the heirs. distributes or
| tcrfe.tennnts.
;rd Because said execution commanded
| the Sheriff to make the costs without stating
| tho amount thereof
4th. Because the execution had been su-
perscdod aud said supcrsedcua remains nm.
discharged.
9th. Because the decree upon which it
| issued was void
This motion was oycrruled upon the
hearing In tho Court below, and Bill Of
Exceptions taken and filed, setting out all
the facts In evidence. The action Of the
Court Oyorruling this motion, Ia the error
complained of here
IL appears by the record that, on the 10th
day of November 1860. defendant in error
as Guardian for Is T. IlerndoD, recovered %
judgment In the Probate Court against
Love as administrator Of Lawson y. Hem
dorsOn, deceased. That on the 18th Of Jan
uary, 1861 n writ of Gcri tdcidS, issued on
that Judgment against the administrator
That ON The 18th day Of January, 1861, the
administrator rendered his final account Gas
II was then regardcd), aud was ordered
upon an agreement between him and the
distributes TO bo discharged That after
wnrds on the application of Love, the Pro
bato Court granted an order supcrsoding
said execution, upon the petitioner cxcCu-
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 Terror appears in the record. but tho Shor-
IN returned the execution superseded on the
2Oth of June, 1861.
II further appears that at the April Term,
1861, of said ProbGto Court, application was
made by Mrs. Postell, aud also by A. B
Troadwel for letters of administration de
bonis non on llcndeHon'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, 80 far as the record
gives ~ any information, npou its
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 imcmcnts, of l.. r.
Henderson, deceased, in possession of said
Treadwell and wife aud Mrs Postcll. as dis
tributes of said estate This execution was
issued M directed, but Eith no bill of costs
annexed
II is first urged by the defendant in error,
that the writ uf error bond and supersedoas
to the original Judgment on which this eX-
ocution was founded were nullitics after
the lapse Of three years from the rendition
OF tho decrce.
This IL not necessarily SO the act of linn
itation Code, p. i0l, art IL, limits the time
Of the issuance of the writ to three years
from tho rendition Of the judgment or de- |
cree, but In this case thcro ia nothing 10 |
show whether the writ of error has been |
sued out or not IL may now be pending in |
this Court for nught 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,
1862, p. A. SO that the operation of the
statute could not be invoked, If properly
pleaded
still further answer to this view is
that the defendant In error could not avail
himself of the statute of limitation on this
motion In the Court below, Ms n plea In bar
of writ Of error, pending or which might
be pending In the High Court of Errors aud
Appeals, Ifthc writ of error had not been
sued out and returned 10 the High Court in
proper time. he should have moved for its
dismissal there, or If IL had been filed there,
he should have plead the statute In that
Court, If il had been in force
The case of Butler VS. Craig, EXr's., 2sth
Miss. r. p. 629, only holds that the failure OF
he Clerk below TO issue the writ of error
within the time limited by the act, will not
avail the plaintiff in error upon n plea of the
tatute In the High Court and that his
cmedy, IL he sustains injury by the negli-
renee Of the Clerk In failing to issue IL in
ime, is against him
II is urged further, as TO the inyalidity of
he petition and bond for writ of error and
uporsedcas in this case, that Il was sued out
" Love in his individual character, and not
= administrator. That the Judgment being
gainst him rs administrator, aud he having
cen discharged by order of the Probate
ourt, upon rendering his final account he
'as no longer parry dCtsRdanr after his
ischarge and could not therefore apply for
he writ
Both the petition aud bond in this case
urpoIt 60 be his ac, rs administrator. The
etition commences In these words, Your
etitioner, Jefferson Love, administrator of
awson +, Henderson, deceased respectfully
iows," SC. Tho bond In like manner p,-
ties that, Jefferson Love, administrator Of
awson r. Henderson. deceased" and his Sc
irities ARE held and firmly bound,' &c,
nd both the petition aud bond are signed
Jefferson Love" His Official character is |
stated in the body of both In. ,
aud clearly indicates his inten-
on, 10 speak and bind hil selfiu his repre-
'ntatiye character. IL has been too often, {
nd too long settled, that q public officer I
hose character as such is stated In tho
ody VI the certificate, or other instrument
Necutod by him. in his official capacity,
eed not do more than append his name. 60 a
squire reasoning OF citation Of authority on :,
rat subject. :
But il is said that he had been discharged
um his trust before the execution Of these I
istruments, and could not. therefore. v
lrther act In bis character Of administrator, q
nd that the bond is for this reason void /,
IL appears In the record, that by an ar.
between the husbands Of the dis
ibutees Of the estate Of Lawson r. Hen. 4
arson, deceased. and the administrator. II
owe, the Probate Court discharged him !,
ON further accountability 10 that Court =
his was done without notice o. the distrib- n
ices. The record shows no citation ever "
sued but it rccites that. 1t appearing 60 ] 81
- guurf that A u TraaHuram awr IL. ] ~