C. WEST vs. GEORGE POINDEXTER.

A plaintiff cannot be a witness to sustain his account, by his own book of accounts. OPINION OF THE COURT-BY THE HON. JOSHUA CHILD.

It is with no small degree of regret, that duty compels me to reverse the judgment of the court below, in this case, given in the hurry of business in the circuit; more particularly so, as nothing appears to this court, to shew that substantial justice, has not been done by the verdict of the jury, and indeed this fact seems to have been conceded by the cousel arguendo for the plaintiff in error.

I am however thoroughly convinced, that the court erred in making the plaintiff a witness without necessity, and admitting his own books as evidence in support of his demand, and am therefore of opinion that the verdict and judgment, however just, cannot be sustained by this court on a writ of error, upon legal principles, and that to do so would be too wide a departure from the settled practice of our courts, and a violation of established rules of decision, too inflexible to bend even to justice.

In reversing this judgment however, I am better satisfied with the result, here, as the decision is not final; upon the former trial, the verdict of the jury was just and right, but their finding was founded in part, upon illegal evidence, and it is impossible for this court, to say what weight that testimony might have had upon the mind of the jury in determining upon their verdict.

The judgment below will therefore be reversed-cause remanded, and a venire facias de novo awarded.

Judges Turner and Black concur in reversing the judgment, and in awarding a venire de novo-but express no opinion, as to the weight of evidence or justice of the verdict. It may have been right and just; but of that the jury are the most proper judges.

DAVIS vs. H. FARRINGTON.

Words merely abusive and insulting are not actionable at common law, unless special damages are laid in the declaration and proved; such words being actionable under the statutes of this state.

OPINION OF THE COURT-BY THE HON. J. CHILD.

The words stated in the declaration are not actionable at common law without a court laying special damages.

The court below therefore erred in overruling the demurrer to the

court.

On this ground alone the judgment must be reversed, because the demurrer should have been sustained.

But as the words are clearly actionable by statute and might have been made so (by adding other counts) at common law, this court in proceeding under the statute to render such judgment as the court below ought to have rendered, reverses the judgment, sustains the demurrer, remands the cause with leave to amend, and awards a venire facias de novo.

Had the same points which have been urged here been raised by the causes of demurrer to the declaration stated in the court below. I am satisfied that the decision would have been different upon the ground, that something had been omitted, so essential to the action, that judgment, according to law and the very right of the case, could not be given without it. Revised code 119; Sec. 64.

In order to sustain the action under the statute, the declaration should describe the wrong as it is described in the statute, viz: insulting and abusive language tending to a breach of the Peace, and should add contra formam statuti, and to sustain it at common law, the declaration should state special damages with a per quod in a separate count.

Black and Winchester Judges concurred.

JESSE HERRINGTON vs. HEZEKIAH HERRINGTON, EXECUTOR, &c. A defendant executor can give in evidence any special matter, without filing a list of offsets, under the general issue.

OPINION OF THE COURT-BY THE HON. EDWARD TURNER.

A verdict was rendered in favor of the defendant, and the jury certified a balance due to the defendant. The plaintiff moved for a new trial; and assigned the following reasons.

At the trial of the cause, after the plaintiff had closed his evidence in support of his account filed, the defendant offered evidence to shew the indebtedness of the plaintiff to the defendant's testat rix. This was objected to by the plaintiff, inasmuch as the only plea filed by the defendant, is that of non-assumpsit. He insists that the defendant, although defending as an executor, shall be confined to the issue joined. But the court admitted the evidence, reserving the point for further consideration, in case it should become necessary, on a motion for a new trial. Which motion, being made, is referred on doubts, to this court.

The question is new, and arises under the provisions of the orphans' court law, passed November 1821, sec. 105; Rev. Code, p. 60. This law provides that, "executors, administrators, collectors and guardians, shall not be compelled to plead specially, to any action, or suit at law, brought against them, in their said capacity; but may, under the general issue, give any special matter in evidence."

The plaintiff's counsel contends, that this law conflicts with that of June 1822, Rev. Code, p. 118, sec. 61, which provides that "In every action in which a defendant shall desire to prove any payment or set off, he shall file with his plea, an account, stating distinctly, the nature of such payment or set off, and the several items thereof; and in failure to do so, he shall not be entitled to prove before the Jury, such payment or set off," &c.—and with the 63d sec. of the same act, which allows the plea of

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payment, allows offsets, &c. and balances found by the jury to be due by a plaintiff to a defendant to be certified, &c.

The acts of assembly found in the volume called the Revised Code, were passed the November session of 1821, June Session of 1822, and January Session 1823. The Revised Code of the laws of Mississippi, consists of the acts enumerated in the act entitled "an act, declaring what laws of a public nature shall be incorporated in the Revised Code and providing for the publication thereof," passed June 30, 1822, and were enacted in the sessions of November, 1821, and June 1822. The act relied on by the defendant's counsel bears date previous to that relied on by the plaintiff, and an inference is attempted to be drawn from that circumstance, that the latter repeals the former. But no such inference is allowable, not only from the time and manner of enacting that code, but from the express provision of the 7th section, of the act, last above cited, which declares, that "the laws of the public nature in the Revised Code, which have been heretofore printed and promulgated, shall have the same force and effect as they had, prior to the passage of this act." Rev. Code, p. 8. The Orphans' court law, of 1821, was printed and promulgated, previous to June 1822, and is one of the acts above referred to. The Revisor and Compiler of the code reported in part to the General Assembly of November 1821, and finally at the June session of 1822. The Orphans' court law, and the Chancery court law were reported and acted on, at the November session, 1821. The Circuit court law, the Supreme court law and others, were reported to, and acted on, at the June session of 1822. So that any apparent conflictions in these several laws, must be reconciled, if possible, so that each may stand, and have the effect designed by the General Assembly. The system of law and practice established by the Circuit court law of 1822, is designed to be general, and applicable to all the courts of the state, (see sec. 100, Rev. Code, p. 126.) But the provision in question, found in the 105th sec. of the Orphans' court law, is an exception to the provisions in the Circuit court law. They can both stand and have effect; the one as the general rule, the other as the exception thereto. The reason of the exception is obviExecutors, &c. representing deceased persons, are not presumed to have the same knowledge of facts, as those who represent their own

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affairs, and the law designed to favor the former, in affording them greater facilities in defending suits at law, than it allows to persons defending in their own right. An Executor, &c. who may be a defendant, may not know of a fact material to his defence, until he hears it from the witness on the stand. The law allows him then, to plead the general issue, and to avail himself of any special matter of defence, which the evidence wiil prove him entitled to.

If however, by this mode of conducting a trial at law, a plaintiff shall be surprised, or have proper grounds, therefore, the court has it in its power to grant him a new trial. He is not without remedy.

In this case no defence was set up, but such as the plaintiff appeared to have full knowledge of. The plaintiff indeed complains of surprise; but his surprise arises on an item in his own account which he offered evidence to prove, and says he expected the defendant would admit it to be just. Whether the jury allowed that item or not, is not certainly known to the court. The verdict, as rendered, was satisfactory to the court before which the cause was tried, as it respects the amount. The only point on which the motion for a new trial was referred to this court, was as to the doubts that then existed, in construing the two statutes above set forth. These doubts are removed, and the court is unanimously of opinion that a defendant, Executor, &c. can, under the general issue, give in evidence on the trial, any special matter of defence, according to the provisions of the Orphan's court law, above recited. Motion for a new trial overruled.

A. MCAULEY'S ADMINISTRATOR, vs. A. MARDIS AND OTHERS. When the defendant in chancery, neither demurs to the bill or pleads in bar a judgment at law, but answers to the merits, it is too late, at the trial, to object, on the ground that a court of law was the appropriate tribunal.

A note given for a gambling consideration may be declared void, either at law, or in a court of chancery.

OPINION OF THE COURT-BY THE HON. EDWARD TURNER.

The bill charges, that Alexander McAuley lost theamount in con