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From: MS Archives <>
Subject: Ms-Jefferson Co. Wills (Spain)
Date: 8 Dec 2005 04:08:46 -0000


Jefferson County MsArchives Court.....Spain, Richard June 1818
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File contributed for use in USGenWeb Archives by:
Deb Haines December 7, 2005, 11:08 pm

Source: Reports Of Cases Adjudged In The Supreme Court Of Mississippi, June Term, 1818
Written: June 1818

RICHARD SPAIN vs. GABRIEL WINTER


It is error to refuse to change the venue, when the defendant makes oath that
he is a resident freeholder of a different country from that in which the
action is instituted.

The opinion in the case Of Levi Hendricks, administrator, vs. William
Snodgrass, affirmed.

OPINION OF THE COURT-BY THE HON. POWHATTAN ELLIS

This was an action of trespass on the case, on a promissory note, executed by
Spain to the defendant, payable three days after date. When this case was
called at the MaY term, 1822, of the superior court of Adams county - the
defendant below submitted the following affidavit:

STATE OF MISSISSIPPI,
ADAMS COUNTY, S. S.
Personally appeared before the undersigned justice of the peace for said
county, Richard Spain, and made oath, that he is a resident and freeholder of
the county of Jefferson, and State of Mississippi, and not a freeholder and
resident of Adams county,and State aforesaid.
RICHARD SPAIN.
Sworn aad subscribed, this 18th day of March, 1822, before
H. TOOLY, justice of the peace

and moved the court to change the venue to Jefferson county, which motion was
overruled, and judgment entered for the plaintiff for the amount of the note,
interest and costs. To this judgment there was a writ of error sued out,
returnable into this court.

ASSIGNMENT OF ERRORS

First, That the court overruled the motion to change the same.

Second, The court gave judgment for the plaintiff, without ruling defendant to
plead, or in any manner hearing his defence to the action.

Third, That no judgment by default was taken, or writ of enquiry awarded.

The court below erred in overruling the motion to change the venue.— See
Revised Code, page 67—section 16.

Upon the rule recognized in the case of Levi Kendricks, administrator, vs.
William Snodgrass, delivered at the January term, 1822, the judgment in this
case must be reversed. In that case, it appeared from the record, that no plea
had been filed, or judgment by default taken, upon which the judgment of the
court was rendered, prerequisites absolutely necessary to authorize the court
to render judgment against the defendant below.

Judgment of the court below reversed, and venire facias denovo awarded.


Source: Reports of Cases Adjudged in the Supreme Court of Mississippi, June
Term, 1818, By R. J. Walker, Reporter of the State. Natchez: Printed at the
Courier and Journal Office, 1834; pages 152-153.

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