The weekly clarion. [volume] (Jackson, Miss.) 1863-1882, 1876-01-26
John ID. Reinhard, Admir-, VS..
- Hines.

Opinion of the Court bg SIMRALL, j.
Suit was brought on an account stated due
by Reinhard's testator TO Hines. Defend
ant pleaded non dSSumpSt, the three years
statute of limitations and payment. The
question was whether the account was an
account stated or an ordinary account
governed by the three years limitation.
The evidence showed that the defendant de-
MED the validity of most of the items of
the account, and never agreed TO the bal
ance as struck by the plaintiff More than
three years had elapsed between the date of
the account and the issuance of the writ,
excluding the nine months after the APP
pointmens of the personal rel resentative,
within which suit could not have been
brought. Held
l. An account stated is one where the
parties consider the claim and by express
agreement strike a balance, after which the
vouchers may be destroyed, and the balance
cannot be disputed. 1t is an agreement
that the balance Is true, and striking the
balance is the consideration OF the promise.
Such an agreement is not shown in this
case.
II. The account sued on was not an SAC
count stated" within the rule above stated.
and was governed by the statute of limita
ton of three years, and barred at the COM
mencement of the suit.
III. Where an account stated is sued
on, it is not necessary to prove the correct
ness of the items, for the action is based on
the special contract of the defendant by
which the balance is ascertained. Reversed
and reminded.
l.. futile, -Ir., vs.. Il. q. Everett.
Opinion of the Court By PEYToN, Gu. j.
This was suit by Everett against futile,
Tax Collector of Carroll county, to recover
a tax of $73 81 illegally assessed agai nst
Plaintiff. The tax was levied for sub
scripti0n TO a railroad company that had
not been legally voted by the electors of the
county. (The question of the legality of
the election was decided in Hawkins VS..
Board of Supervisors of Carroll CO., 80 Miss.)
The taxpayer did not pay under protest,
AMI it was insisted by Plaintiff in Error
that as the payment was voluntary no action
could be maintained for the recovery of the
tax. Held.
l. The rule is, where the property is prop
erly taxable, and the tax itself is legal, and
there is merely an irregularity in the levy
or mode of collection of the tax. if the pay
ment is voluntarily made, the amount paid
cannot be recovered from the Tax Collec-
tor.
III. But where the assessment and levy
of the tax are illegal and void, the tax may
be recovered from the Tax Collector whilst
the same Is in his hands, although the pay
ment is voluntary. After the money has
been paid over by the Tax Collector the ac-
ton must be against the corporation.
III. The tax in this case was illegal and
void. and the action was maintainable.
affirmed.
Aerr and McAfee vs.. Moore.
Opinion of the Court, by TARBELL j.
Suit was commenced before a Justice OF
the Peace in the name of John A. Cook, by !
Kerr aud McAfee his agents against Moore |
The claim was for agricultural supplies Sc |
cured by the statutory lien, and was as |
signed in writing by Cook to Kerr and |
McAfee
On appeal in the Circuit Court this case
was dismissed, because the legal title to the
claim was not in the Plaintiffs Kerr and |
McAtee and because the lien was not as |
signable Held.
l. This claim was assign4ble in writing |
and the legal title passed to the assignees |
Code 1871 Sec. 670) The Circuit Court |
should have permitted the suit to proceed |
either in the names of the assignees or in |
the name of Cook for their use. Reversed |
and remanded
John A. Shinm vs.. The State.
Opinion Of the Court, By TARBELL, j.
Plaintiff in error was convicted of an |
assault with attempt TO kill. On the trial |
the court as ked the prisoner if he had coun- |
sci; he replied that he had no money to |
employ counsel. He was then asked if he /
nau any witnesses, and the reply was that |
he had one important witness, who was alb |
sent; but did not ask for process for the
witness, and did not ask to have counsel as |
signed him by the court. Held l. The fail
ure of the court to assign counsel tn rho |
without a request of the prisoner, are NOT
sufhclent grounds for disturbing the iudo-
ment- Affirmed.
1Ob Wallace vs.. the State.
Opinion of the Court By TARBELL, J.
Motionto dismiss the appeal on the ground
that the appeal was granted from an inter-
iocutory decree by the Clerk in vacation
Motion denied on the ground that the de-
cree was not lnterlocutory, but final de-
cree. Notion denied.
Ned Hart W.. The state.
Opinion Of the Court By TARBELL, J.
Plaintiff in error was convicted of lar
cehy. On the ground that the evidence was
not suthctent to warrant conviction tho
judgment was reversed, and cause remdpsded.
u ohm Jordan vs.. MOIIie a. Moore
Affirmed as DELAY case.
Anderson VS.. w. w. LELAND. uso
of Miller,
No opinion. Affirmed.