Jacks v. Bridewell

Citations

• 51 Miss. 881

Syllabus

<p>1. Chancery Practice : Rehearing when defendant cited by publication.</p> <p>By the Code of 1857, a defendant who was cited to appear by publication only, and who failed to appear and plead, answer or demur, and against whom a decree was rendered, had the right to petition for a rehearing at any time within five years, and where a case has been disposed of by the chancery court held by the circuit judge, under the superseded system, the defendant still has the right to petition the chancery court as it now exists. The right is not affected by the change of the court, and the right would not be barred, except by the limitation of five years prescribed by the Code of 1857, or that of two years by the Code of 1871.</p> <p>2. Same : Same : Notice of the proceedings.</p> <p>The fact that the defendant had full notice of the proceedings, and failed to appear and plead, answer or demur, does not deprive him of the right to the rehearing provided for him by the code.</p> <p>3. Testimony on Complainant : Competency of, against the estate of a deceased person. Code of 1871, § 758.</p> <p>If tlie demand of the claimant be “ against the estate of a deceased person,” he is incompetent as a witness. The term “ estate of a deceased person ” is used in its broad and popular sense to signify all the property of every kind which one leaves at his death, any right asserted against real or personal property, left by a deceased person, as accrued to the party by virtue of a dealing between him and such person, since deceased, renders the person asserting it incompetent as a witness, to maintain in Ms own behalf such assertion of right.</p> <p>4. Bill in Chancery: Sworn to by an attorney. Code of 1871, § 1087.</p> <p>Where a bill is sworn to by an attorney, the complainants are not entitled to the benefit of the Code of 1871, § 1087. The object of this section is to entitle complainant to swear to his bill, putting his oath against that of the defendant, to get clear of the rule requi