Amite County MsArchives Court.....Lindsay, Susannah June 1818
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Deb Haines ddhaines@gmail.com December 7, 2005, 5:17 pm

Source: Reports Of Cases Adjudged In The Supreme Court Of Mississippi, June Term, 1818
Written: June 1818

SUSANNAH LINDSAY vs. FRANCIS HERD


Upon an appeal from a judgment of a justice of the peace, for a sum exceeding 
twenty dollars, it is error, for which the supreme court will reverse the 
judgment of the circuit court, if either party proceed to tria1 there, 
without, making up an issue.

This suit was originally brought by the defendant in error, before a justice 
of the peace, and a judgment rendered in his favor, for more than twenty 
dollars. From that judgment, the plaintiff took an appeal to the Superior 
Court of Amite county. In that court, "there being no formal issue made up by 
and between the parties," a jury was sworn, "well and truly to try the appeal 
aforesaid," who found a verdict for the present defendant, for twenty-four 
dollars, and costs; upon which verdict, judgment was rendered. To reverse that 
judgment, tho plaintiff brought this writ of error, and assigned the following 
reasons for the reversal.

1. The declaration is insufficient to maintain the action.

2. There was no issue between the parties made up in said cause at or before 
the trial.

3. The general error.

The defendant pleaded substantially in nullo est erratum.

Rankin for plaintiff - The second error assigned must be fatal. The judgment 
is for more than twenty dollars, and no issue was made up at or before the 
trial. The act of 1814 provides, that "in cases where the sum claimed exceeds 
twenty dollars, the said (superior) court shall try such appeal de novo, as 
any other cause in said court is tried at the first term, on an ssue to be 
made up at or before the trial." Dig. 317, S. 3.

McGee for defendant.—It does not appear from the record, that there was no 
issue made up, but that there was no formal issue. The statute does not 
require that the issue should be technically formal. But if there was not such 
an issue made up as the statute require, it is not an error, of which the 
plaintiff can avail herself. It was her own fault, that she did not plead to 
the action in the superior court, and she cannot take advantage of her own 
wrong.

Rankin, in reply—The record ought to show, not only that there was an issue, 
but also, what the issue was, that the court may be able to judge of its 
materiality. The error was the defendant’s, in putting the cause to the jury, 
before it was prepared for trial.

Curia—The judgment must be reversed.


Source: Reports of Cases Adjudged in the Supreme Court of Mississippi, June 
Term, 1818, By R. J. Walker, Reporter of the State. Natchez: Printed at the 
Courier and Journal Office, 1834; pages 18-19.

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