Legal Opinion

State ex rel. Clark, West & Co. v. Bowen

Mississippi Supreme Court

Decided October 15, 1871PublishedCited by 5 opinions

Error to the circuit court of Warren county. Brown, J. The facts appear in the opinion of the court. The defendant cannot plead nil debet to an action of debt on a bond, with collateral condition, and breaches specially assigned in the declaration. Walker, 504; William v. Guiquard, 2 How. (Miss.) 722, 723 ; Mills v. Duryee, 7 Cranch, 481; 2 Tucker’s Com. 103 ; Bagget et al. v. Beard, 43 Miss. The demurrer should not have been extended back to the • declaration.

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Error to the circuit court of Warren county. Brown, J. The facts appear in the opinion of the court. The defendant cannot plead nil debet to an action of debt on a bond, with collateral condition, and breaches specially assigned in the declaration. Walker, 504; William v. Guiquard, 2 How. (Miss.) 722, 723 ; Mills v. Duryee, 7 Cranch, 481; 2 Tucker’s Com. 103 ; Bagget et al. v. Beard, 43 Miss. The demurrer should not have been extended back to the • declaration. Rev. Code, § 15, art. 122; ib. § 31, p. 431; Burness v. Fisher, adm’r, 23 Miss. 228, 232; Randolph v. Singleton et al., 12 Smedes &…

1Opinion of the Court

Simuall, J.:

Suit was brought by Clark, West & Co. as relators on the bond of Henry W. Bowen, administrator of the goods, etc., of D. McCullum, deceased, C. A. Manlove being surety. The averment of the declaration is in substance that Clark, West & Co. were, by the- judgment and decree of the probate court of Warren county, declared to be the creditors of the estate of D. McCullum, deceased, and said Bowen was ordered to pay them the sum of $1,502, their debt, and that ample assets, to the amount of $5,000, came to his hands as such, which he refused to apply to the payment of their debt.…

2Cases cited2 opinions

  1. Anderson v. TindallMississippi Supreme Court · 1853
  2. Burruss v. FisherMississippi Supreme Court · 1851

3Cited by5 opinions

  1. Jones v. PattyMississippi Supreme Court · 1895
  2. Yeatman v. YeatmanNebraska Supreme Court · 1892
  3. Allen v. Smith Bros.Mississippi Supreme Court · 1895
  4. New Orleans N.E.R. Co. v. EliasMississippi Supreme Court · 1949
  5. W. T. Raleigh Co. v. FortenberryMississippi Supreme Court · 1925

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