Barrington v. Mississippi Central Railroad

W. L. Harris, special judge, delivered the opinion of the court. From the record in this case it appears that no exceptions were taken in the progress of the trial. After the verdict of the jury, it is recited, that the defendant moved the court for a new trial, but neither the judgment of the court on such motion, nor even the motion itself is contained in the record, except as recited in the bill of exceptions. In the case of Moody v. Nichol, 26 Miss R. 109, it is held that the judgment of the Circuit Court is by law, a part of the record, and cannot be certified to this court through the medium of a bill of exceptions. It is therefore unnecessary to examine the bill of exceptions, and the points raised under it, on the motion for a new trial. The record however contains the instructions granted, and those refused by the court below, duly noted and certified by the clerk, and made by the statute a part of the record in the cause. The two instructions asked for by the plaintiff below, assert the proposition, that a payment made anterior to the subscription for stock of the one per cent, required by the charter, is a valid payment ; that it was originally made to the company on an invalid subscription for stock, which was subsequently corrected by re-subscription, cannot affect the validity of the re-subscription. The company having received the one per cent., and holding the same, at the time of re-subscription and since, had no right to deny to the defendant below its application to the re-subscription. "VVe think there was no error in these instructions. Two instructions were asked for the defendant below, only the first of which was refused by the court. This instruction proposed to limit the time of payment of the one per cent, required by the charter, to the very date of the valid subscription in 1854. A payment of this one per cent., either at the time of subscribing or before that time, with the intention thereby to comply with the requisitions of the charter, we have already seen, was sufficient; there was therefore no error in refusing this instruction. Let the judgment be affirmed. [373] DaNIRL Mayes, Esq., special judge, dissented from so much of the foregoing opinion, as held that the exceptions did not appear to have been taken during the progress of the trial, and that the motion for a new trial and the judgment of the court thereon was not legitimately a part of the record. As to the other points he concurred in the opinion.