Vance v. Isbel

21 Miss. 371

• Court: Mississippi Supreme Court
• Decided: January 15, 1850
• Status: Published

Opinion

Mr. Justice Smith

delivered the opinion of the court.

This was an action for a malicious prosecution, tried in the circuit court of Panola county.

The defendant pleaded, first, the general issue; second, a plea of the statute of limitations; and third, a special plea in bar to the second count of the declaration. Issue was joined on the first, the second was waived, and to the third the plaintiff demurred generally. The cause was submitted to the jury on the issue taken on the first plea, the demurrer to the third not having been disposed of. This is insisted on as error.

That it was irregular and erroneous seems to be the settled doctrine of this court. See Walker v. Walker, 6 How. 500; Marlow v. Hamer, Ib. 189; Rowly & al. v. Cummings & Spyker, 1 S. & M. 345 ; Harper v. Bondurant, 7 Ib. 397. It is true, that in a later case, that of Proskey v. West, 8 S. & M. 711, a different rule is laid down. But there was no reason given for a departure from what was the settled practice. The decision in that case ought not, therefore, to be considered as overruling the previous adjudications on this point.

For this error, the judgment must be reversed, and the cause remanded for further proceedings.