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1 Miss. 496

Arnett v. Bitsel

Mississippi Supreme Court

Decided December 15, 1832

Mississippi Supreme Court · decided 1832-12-15

First — The court below had not jurisdiction to try this case, inasmuch as the law requires that loth associate justices should be present; 34th cb., revised code, page 226. Seeond— There was no legal'notice: 1. Because it was not served three days before the time of trial; and 2. Because the writ was not left with the defendant so that he might return the same; see rev. code, page 222, sec. 2.

Decided 1832-12-15

¶1OPINION OF THE COURT — bv the

Hon. J. R. NICHOLSON

¶2This is a writ of error to a judgment of the county court of Hinds county, on habeas, corpus, for the trial of the right of possession of a slave named Cloe.

¶3The plaintiff in error, by his counsel, objected to the authority of the court to try his case in the absence of Hugh McGowan, one of the associate justices of said county. But the court overruled the objection, and proceeded to the trial of the cause.

¶4The first authority granted by the Legislature for this summary method of trial, for the possession of slaves, is to be found in the Rev. code 225, sec., 19; and was given to “the Supreme court, or any circuit court of law, or court of chancery, or any judge of said courts in vacation. As a matter of convenience, this authority was afterwards extended to the judges of Probate, of the several counties, to grant the writ of habeas *497corpus, and in conjunction with their associates, give relief in the same manner that the judges of the supreme court could do; see revised code, page 226.

¶5It will be observed, that the authority to this body of mentis not given to the county court, as a court, but to the judges of probate, who, in conjunction with their associates, shall give relief, &c.

¶6The legislature, then, having selected these three individuals as a body of men, and not as a court, it is clear, to my miud, that both of the associates must sit with the judge of probate, in order to constitute a tribunal under this act; and such must have been the intention of the legislature: otherwise, they would have said, as they did in the county court law, revised code, 74, that a majority of the justices of the said court, viz. the county court, shall be necessary to constitute a court.

¶7Had the authority, in this act, been given to the county court, as a court, or a majority of the justices, &c., there would have been no doubt on the subject. But here is a specific grant of authority, to a specific number of men, constituting a particular body of magistracy, for the trial of a specific kind of property. It is a tribunal of limited jurisdiction, andean take no authority or jurisdiction by intendment, or construction.

¶8There are other defects in the record and proceedings of the court below; but it is not necessary, in this case, to decide them.

¶9The judgment below must be reversed.

Judges Turner and Montgomery, Smith and Huston concur.
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