Mayfield v. Barnard

Citations

• 43 Miss. 270

Syllabus

<p>1. Service&emdash;Return&emdash;How Contradicted&emdash;Practice.&emdash;The statute (Rev. Code, p. 489, art. 65), providing that the return endorsed on process may in the same action he shown to be untrue, clearly contemplates, as do also the principios of correct pleading, that the facts upon which the party impeaching the return relies to establish its falsity, shall be set forth in a plea, in the nature of a plea in abatement, upon which an issue and jury trial may be had ; and in such case if the jury find for plaintiff the judgment will be final quod recupere. A mere motion to set aside a return because untrue in fact, accompanied by an offer to prove its falsity, should be overruled and the testimony refused.</p> <p>2. Slave — Oonteacts—Covenant of Warrant!. — The warranty that a slave was “a slave for life” relates only to the legal status of the property at the time of the warranty; and the contract is not affected by the subsequent emancipation of the slave by action of the government. The loss by emancipation must fall on the person owning the property at the time of emancipation. And it is well settled that such emancipation cannot be set up in avoidance of payment of the purchase money of a slave so emancipated.</p> <p>3. Pleading — Practice.—'Though a pleading may be so defective as to justify the opposite party and the court in treating it as a nullity, yet if it be not so treated, but demurred to, such demurrer must always be disposed of before judgment final on the merits. The demurrer is a waiver by the demurrant of his right to have the pleading demurred to treated as a nullity, and a judgment on the merits, leaving such demurrer undisposed of, will be reversed on error.</p>