Harper, Special J.,
delivered the opinion of the court.
The demurrer to defendant’s first plea in abatement was properly sustained. That plea sought by way of plea in abatement to deny that defendant Avas indebted to plaintiffs. This is not permissible. The debt can only be denied by a plea in bar. It is true that if there be no debt the attachment has been wrongfully sued out. But the trial of this question is reserved under our practice for the trial on the merits, since it ends the whole proceeding; otherwise, there might be two trials of this one issue in the same cause, and each might result differently.
The second plea in abatement denied, among other things, that plaintiffs’ demand was due. This question was properly left to the jury, since an attachment cannot be sued out against a nonresident unless the debt be due. After the facts had all been shown, the court properly directed the jury to find for plaintiffs on this issue.
Plaintiffs’ demand became due immediately after defendant had breached its contract by delivering grain inferior in quality [451]*451to that agreed upon- — at least, after the delivery of the grain and the actual payment of the price to defendant’s agent, the bank. It is true plaintiffs’ demand was partially unliquidated, but this court has held that an attachment will lie for an unliquidated demand arising out of a contract, as well as for a liquidated demand. Nethery v. Belden, 66 Miss., 490 (6 South. Rep., 464).
On the trial on the merits, the court below instructed the jury to find for the plaintiffs in the sum of two hundred dollars, on account of damages arising from delivery of the first two cars of inferior grain. This was correct, since the damages thereon became liquidated, fixed, and certain when defendant agreed that plaintiffs could take these two rejected cars for two hundred dollars less than the contract price, on account of the inferior quality of the grain. Nor have we been able to discover anything in the record to show that this agreement was brought about by any misrepresentation of any sort made by plaintiffs. Counsel for appellant contend that defendant was misled into believing that the money had been actually paid at the time this agreement was entered into. But certainly plaintiffs never did or said anything to that effect. On the contrary, defendant expressly stated that it would not remit until it had been notified that the drafts had been actually paid, showing that it knew or believed at the time that the drafts had not already been paid. But if the- grain was delivered by the bank upon a mere acceptance of the demand drafts, it was the fault of the defendant’s agent, who thereby became liable to it for the money, and did not authorize defendant to avoid its contract. Before the attachment was issued, all the money had actually been paid, and the demand, so far as the first two cars are concerned, was both due and liquidated.
As to the third car of grain, plaintiffs had two courses open to them: They could have rejected the grain and sued for damages for breach of the contract, or they could have paid the contract [452]*452price, taken the grain, and recovered the difference between its ■value and the value of grain of the quality named in the contract. Plaintiffs elected to pursue the latter course, and the right of action accrued upon the payment of the draft and the receipt of the inferior grain. The court rightly left the question of the amount recoverable on account of this third car to be determined by the jury upon the evidence adduced.
The action of the court below seems to have been correct throughout, and the judgment is affirmed.
The appellant, after the delivery of the foregoing opinion, filed an elaborate suggestion of error. Pefore the suggestion was acted upon, however, Chief Justice Whitfield, being restored to health, resumed his place on the bench.
■ Thereafter the suggestion of error was overruled, Special Judge Harper, and not Chief Justice Whitfield, acting with the other judges in its consideration and determination.
Whereupon the appellant made a motiou in the following • words — viz.:
Motion.
Now comes the appellant herein and shows to the court that the opinion of the supreme court herein was delivered by Special Judge Harper on February 5, 1906;
That in due course of time thereafter — to wit, on March 26, 1906 — appellant filed a suggestion of error which is now pending before this court;
That at the time of the delivery of the opinion herein the said Special Judge Harper was acting under the authority of the commission issued to him by the governor on January 29, 1906, as provided and authorized by Code 1892, § 921, which authorized the said Special Judge Harper to preside generally during the disability, of Chief Justice A. H. Whitfield, and the com[453]*453mission did not authorize the said Special Judge Harper to preside in any designated ease, particularly this case;
McLaurin, Arrrmtead & Brien, for the motion.
Judge Harper was commissioned to preside on the supreme bench of Mississippi in the place of the Hon. A. II. Whitfield, chief justice, and to do and perform all things pertaining to all causes coming before said court for consideration.
The court will observe from this commission that there was no limit as to the time Judge Harper was to preside, but his commission would, of course, expire when the disabilities of Chief Justice’Whitfield had so disappeared as to enable him to resume his seat upon the bench. ■
There could hot, under the law, as at present constituted, be four justices of the supreme court. When Chief Justice Whitfield returned to the bench, Judge Harper's authority necessarily ceased. Judge Harper was not commissioned to try any jiarticular case; if so, we admit that the rule of law would be different. In this connection, we cite the court to sec. 165 of the constitution and to Code 1892, § 921.
[453]*453That, as provided by said section, it had previously been certified to the governor that Chief Justice Whitfield was ill and unable to discharge the duties of his office; that since the delivery of said opinion the said chief justice has so recuperated and recovered his health as to be again upon the bench.
Appellant is informed and believes, and therefore charges, that, regardless of the fact that Special Judge Harper was only commissioned to act as special judge generally during the disability of the chief justice, he yet considered it his right and his duty to take part, in his specially constituted (by the governor) judicial capacity, in rendering the opinion of the court responsive to the said suggestion of error..
For these reasons appellant asserts that it is its right to have the court, when no member thereof is unable, as regularly constituted, to pass upon and determine its rights.
Wherefore, appellant moves the court to displace the said special judge, that the said suggestion of error may be proceeded with regularly by the court as at present lawfully constituted.
Bryson & Dabney, contra.
Whitfield, O. J.,
delivered the opinion of the court upon the motion.
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Harper, Special J.,
delivered the opinion of the court.
The demurrer to defendant’s first plea in abatement was properly sustained. That plea sought by way of plea in abatement to deny that defendant Avas indebted to plaintiffs. This is not permissible. The debt can only be denied by a plea in bar. It is true that if there be no debt the attachment has been wrongfully sued out. But the trial of this question is reserved under our practice for the trial on the merits, since it ends the whole proceeding; otherwise, there might be two trials of this one issue in the same cause, and each might result differently.
The second plea in abatement denied, among other things, that plaintiffs’ demand was due. This question was properly left to the jury, since an attachment cannot be sued out against a nonresident unless the debt be due. After the facts had all been shown, the court properly directed the jury to find for plaintiffs on this issue.
Plaintiffs’ demand became due immediately after defendant had breached its contract by delivering grain inferior in quality [451]*451to that agreed upon- — at least, after the delivery of the grain and the actual payment of the price to defendant’s agent, the bank. It is true plaintiffs’ demand was partially unliquidated, but this court has held that an attachment will lie for an unliquidated demand arising out of a contract, as well as for a liquidated demand. Nethery v. Belden, 66 Miss., 490 (6 South. Rep., 464).
On the trial on the merits, the court below instructed the jury to find for the plaintiffs in the sum of two hundred dollars, on account of damages arising from delivery of the first two cars of inferior grain. This was correct, since the damages thereon became liquidated, fixed, and certain when defendant agreed that plaintiffs could take these two rejected cars for two hundred dollars less than the contract price, on account of the inferior quality of the grain. Nor have we been able to discover anything in the record to show that this agreement was brought about by any misrepresentation of any sort made by plaintiffs. Counsel for appellant contend that defendant was misled into believing that the money had been actually paid at the time this agreement was entered into. But certainly plaintiffs never did or said anything to that effect. On the contrary, defendant expressly stated that it would not remit until it had been notified that the drafts had been actually paid, showing that it knew or believed at the time that the drafts had not already been paid. But if the- grain was delivered by the bank upon a mere acceptance of the demand drafts, it was the fault of the defendant’s agent, who thereby became liable to it for the money, and did not authorize defendant to avoid its contract. Before the attachment was issued, all the money had actually been paid, and the demand, so far as the first two cars are concerned, was both due and liquidated.
As to the third car of grain, plaintiffs had two courses open to them: They could have rejected the grain and sued for damages for breach of the contract, or they could have paid the contract [452]*452price, taken the grain, and recovered the difference between its ■value and the value of grain of the quality named in the contract. Plaintiffs elected to pursue the latter course, and the right of action accrued upon the payment of the draft and the receipt of the inferior grain. The court rightly left the question of the amount recoverable on account of this third car to be determined by the jury upon the evidence adduced.
The action of the court below seems to have been correct throughout, and the judgment is affirmed.
The appellant, after the delivery of the foregoing opinion, filed an elaborate suggestion of error. Pefore the suggestion was acted upon, however, Chief Justice Whitfield, being restored to health, resumed his place on the bench.
■ Thereafter the suggestion of error was overruled, Special Judge Harper, and not Chief Justice Whitfield, acting with the other judges in its consideration and determination.
Whereupon the appellant made a motiou in the following • words — viz.:
Motion.
Now comes the appellant herein and shows to the court that the opinion of the supreme court herein was delivered by Special Judge Harper on February 5, 1906;
That in due course of time thereafter — to wit, on March 26, 1906 — appellant filed a suggestion of error which is now pending before this court;
That at the time of the delivery of the opinion herein the said Special Judge Harper was acting under the authority of the commission issued to him by the governor on January 29, 1906, as provided and authorized by Code 1892, § 921, which authorized the said Special Judge Harper to preside generally during the disability, of Chief Justice A. H. Whitfield, and the com[453]*453mission did not authorize the said Special Judge Harper to preside in any designated ease, particularly this case;
McLaurin, Arrrmtead & Brien, for the motion.
Judge Harper was commissioned to preside on the supreme bench of Mississippi in the place of the Hon. A. II. Whitfield, chief justice, and to do and perform all things pertaining to all causes coming before said court for consideration.
The court will observe from this commission that there was no limit as to the time Judge Harper was to preside, but his commission would, of course, expire when the disabilities of Chief Justice’Whitfield had so disappeared as to enable him to resume his seat upon the bench. ■
There could hot, under the law, as at present constituted, be four justices of the supreme court. When Chief Justice Whitfield returned to the bench, Judge Harper's authority necessarily ceased. Judge Harper was not commissioned to try any jiarticular case; if so, we admit that the rule of law would be different. In this connection, we cite the court to sec. 165 of the constitution and to Code 1892, § 921.
[453]*453That, as provided by said section, it had previously been certified to the governor that Chief Justice Whitfield was ill and unable to discharge the duties of his office; that since the delivery of said opinion the said chief justice has so recuperated and recovered his health as to be again upon the bench.
Appellant is informed and believes, and therefore charges, that, regardless of the fact that Special Judge Harper was only commissioned to act as special judge generally during the disability of the chief justice, he yet considered it his right and his duty to take part, in his specially constituted (by the governor) judicial capacity, in rendering the opinion of the court responsive to the said suggestion of error..
For these reasons appellant asserts that it is its right to have the court, when no member thereof is unable, as regularly constituted, to pass upon and determine its rights.
Wherefore, appellant moves the court to displace the said special judge, that the said suggestion of error may be proceeded with regularly by the court as at present lawfully constituted.
Bryson & Dabney, contra.
Whitfield, O. J.,
delivered the opinion of the court upon the motion.
The facts in this case are these: The chief justice being temporarily sick, the governor appointed Hon. W. B. Harper to act in his place, and during the period of his disability — that is to say, his sickness. The commission issued to Judge Harper authorized him “to preside in said supreme court in the place of the said chief justice, and to do and perform all things pertaining to all causes coming before said court for consideration as fully, in every respect, as the said chief justice could do if he were not disqualified and were present and presiding.” This is plainly not the appointment of a special judge to try a special case, but is a general appointment to preside, in all cases, but during the time limited — the disqualification of the chief justice. The law seems clear that a special judge appointed to try a special case will take part in the decision of everything relating to that cause, suggestions of error, etc., included. Work on Courts and Their Jurisdiction, p. 395. That is not this case. Here, clearly, Judge Harper's power to act as a special judge ivas limited to the period of the sickness of the chief justice. Immediately upon the termination of that disability — that is to say, when the chief justice resumed his duties — the power of the special judge at once terminated.
We have examined quite a number of authorities, but cite only two — the best and clearest we have found. In the case of Coles v. Thompson, 7 Tex. Civ. App., 666, the facts were: The district county judge presiding in Bee county entered his disqualification, and the Hon. Gr. W. Bly was regularly agreed on as special judge, and qualified as such, and had, previous to the [455]*455trial term, made orders in causes — that is to say, Judge Fly was appointed for the term to try all causes. At the trial term succeeding the term at which he had made orders in various causes, the disqualified judge had been regularly succeeded in office by another judge, duly and regularly elected to the office, before whom the trial was held. The defendant objected to the regular judge trying the cause, insisting that the special judge should try, because his appointment was still in force. The court said: “We are of opinion that, on principle, the powers of a special judge terminate when the occasion for his existence has ceased. There can be no substantial reason why the district judge should not proceed to hear and determine any cause on the docket of his court where no cause exists disqualifying liim from so doing.”
In the case of Hyllis v. State, 45 Ark., 478, the facts were: A vacancy existed in the office of circuit judge, and a special judge was elected, and the Hon. J. E. Hiddick was chosen special judge on the 18th of March, and acted as special judge until the 28th of March, when the Hon. W. IT. Cate’s commission as regular circuit judge was issued, and he appeared, qualified, and took the bench. On the 29th day of March the special judge, without any new election held, tried the cause, and the question was whether the judicial functions of the special judge did not cease and terminate upon the appearance of the incumbent of the office, and the court held that they did so cease and terminate, and that all the proceedings before the special judge were absolutely void.
The cases referred to in Work on Courts and Their Jurisdiction, p. 395, notes 1 and 2, are cases of special judges appointed to try special causes. We are, therefore, of the opinion, both on these authorities and on reason and principle, that the power of the special judge in this cause existed only during the sickness of the chief justice, and ended upon the resumption of the bench by the chief justice — that is to say, upon the expiration of the disability (sickness) of the chief justice.
[456]*456Reargument is asked for in this cause. It appears that the cause was submitted originally on briefs without oral argument. Oral arguments are never allowed on suggestions of error. If either of the two justices who took no part in this cause on the former hearing, after examining the. record, shall desire oral argument, then the cause will be remanded to the docket for oral argument; otherwise, the suggestion of error will be passed on by the regular judges of the court in the usual way. We add that the point was not called to the attention of the court until the suggestion of error had been acted on.
The result is, that the judgment heretofore entered overruling the suggestion of error is hereby vacated, and this cause is hereby resubmitted, on suggestion of error, to the court for determination. So ordered.
And after this, the suggestion of error was overruled by the court, consisting of the regular judges.
Chief Justice Whitfield, having been temporarily incapacitated by illness, retired for a few days from the bench ; and William R. Harper, Esq . a member of the supreme court bar, was commissioned to preside in the supreme court in the place of the chief justice and during the period of his disability. While so acting in the place of the chief justice, Special Judge Harper delivered the opinion of the court in this case.