T. C. Reddy & Co. v. Bego

33 Miss. 529

Opinion

Fisher, J.,

delivered the opinion of the court.

The plaintiffs below sued out a writ of attachment, against the estate of the defendant, on the ground that he was about to remove from the State. The defendant tendered an issue, traversing this fact, to wit, that he was not about to remove from the State at the date of the issuance of the writ. After the evidence of both parties was closed, the court, at the instance of the defendant, gave the following instruction: “ If the jury believe, from the evidence, that Bego even did intend to leave the State, but abandoned that intention, a/nd had none such, on the nineteenth day of February, 1857, the jury will find for the defendant, Bego.” This instruction, in our opinion, is not correct. It should have been, in substance, this: that if the defendant intended to remove or leave the State, but abandoned such intention, and the plaintiffs had notice of this abandonment of intention before suing out the attachment, then they should find for the defendant.

For this error the judgment is reversed, new trial granted, and cause remanded.