
    George W. Ross vs. Jesse A. Mims.
    Where, on an application to the probate court to remove an executor for maladministration, oral testimony was given, but not taken down at the time, the executor having time given him until the next term to reduce it to writing ; and after the decision of the court removing the executor, he had the witnesses re-examined before a justice of the peace and their testimony taken down, and the clerk of'the probate court certifies to the correctness of the transcript of the evidence; held, that the high court of errors and appeals could not notice the testimony; it was irregular to re-examine the witnesses after trial; the evidence under the statute should have been taken down and recorded at the time.
    Where an application is made to the probate court to remove an executor for insufficient security on his bond, the sureties may prove their sufficiency by their own oath, like the qualifying of bail; which being done, it then devolves, on the other party to show their insufficiency by other evidence.
    The judgments of inferior courts are presumed to be correct unless the contrary be shown ; but where error has intervened which may have operated prejudicially, the injured party is entitled to a reversal, unless it appear of record affirmatively that the error was waived.
    On appeal from the probate court of Hinds county; Hon. Henry G. Johnston, judge.
    In December, 1843, Jesse A. Mims, on behalf of his wife Eliza, one of the heirs and distributees of the estate of John Dobbs, deceased, filed his petition against George W. Ross, executor of the last will and testament of Dobbs. The petition averred that Ross was wholly unsuitable to administer the estate under the will; that he had sold one of the testator’s slaves, without an order of court, and that his securities on his bond as executor were not sufficient; and prayed for a revocation of his letters, and that the estate be committed to some one else.
    Ross made no answer to the petition; but appeared in person and by attorney, and resisted it; on the trial he offered the-sureties on his official bond as witnesses in behalf of their solvency; bat they were rejected as incompetent, from interest, to which he excepted. The trial took place at the January term, 1844, and the court below revoked his letters, and he appealed. Following the order granting the appeal in the record is this entry, viz.: “ It is also ordered with the assent of petitioner’s counsel, that said Ross have until the next term, to reduce to writing the evidence in the cause.”
    On the 16th of February, 1844, the several witnesses who were examined at the trial deposed before a justice of the peace to their respective depositions, and the clerk certified that the testimony of the various witnesses respectively was as set out in the record and contained in their depositions. As the evidence contained in these depositions was not regarded by the court, it is not here further noticed.
    Ross prosecutes this appeal.
    
      Foote and Hutchinson, for appellant,
    contended,
    1. That the probate court had no such power of removal for mal-administration as the petition applied for; the remedy being on the administration bond. They cited Judge of Probate v. Phipps, 5 How. 59; Green, v. Tunstall, Ibid. 639; Jones v. Miles, 1 How. 50; Prosser v. Yerby, Ibid. 87; Lehr v. Tarball, 2 How. 905.
    '2. The sureties on the official bond were not interested in the controversy and were competent witnesses; and their interest, if any, was against themselves.
    3. That the record did not show a devastavit; even if the probate court had power to inquire into it.
    
    
      A. R. Johnston, on the same side.
    
      Davenport and Greaves, for appellees,
    cited the following authorities : Woolbridge v. Wilkins, 3 How. 360; Byrd v. The State, 1 How. 163; Green v. Robinson,-3 How. 105; Berry v. Hale, 1 How. 315; Moulding v. Rigby, 4 How. 222; Carmichael v. Browder, 4 How. 431 ; Kerr v. Roberts, 5 How. 278; Huston v. Hayter, 6 How. 580; Ferriday v. Selser, 4 How. 506; Townsend v. Blewete, 5 How, 503.
   Mr. Chief Justice ShaRKey

delivered the opinion of the court.

Mims, in right of his wife, who is one of the distributees of the estate of John Dobbs, filed his petition in the probate court of Hinds county, for the purpose of obtaining a revocation of the letters testamentary of Ross, who is the executor of Dobbs’s estate. The petition charges that Ross is incompetent to manage the estate, and that he had committed acts of maladministration, and also that his sureties had become insufficient. After hearing the parties, the court decreed that the letters should be. revoked, and Ross appealed. Time was given him until a subsequent term to reduce the evidence to writing. An objection is taken to the evidence, because it was taken down subsequent to the trial. It seems the witnesses were re-examined before a justice of the peace, and the clerk certifies to the correctness of the transcript of the testimony. It was irregular thus to examine the witnesses after trial. The statute provides that the evidence given on the trial shall be taken down and recorded. Regularly the judge should certify to the correctness of the testimony. This objection being well taken by the counsel for the appellee, leaves but one point for us to decide. One of the charges in the petition is, that the sureties of the executor were insufficient. The appellant introduced the sureties, and offered to examine them as witnesses, to rebut the allegation of the insufficiency of the bond, but the court refused to permit them to testify. It is competent for the court to require new sureties in case the original sureties have become insufficient. But when proceedings are instituted against an executor or administrator because of the insufficiency of the sureties, the sureties may qualify or prove their sufficiency, the regular way of doing which is by their own oath, like the qualifying of bail. If they should say on oath that they are sufficient, then it devolves on the other party to show their insufficiency by other evidence. The court therefore erred in refusing to permit the sureties to be sworn.

It is said, in argument, that this ground was abandoned by the petitioner’s counsel, and that there was therefore no contest in the court below. This we cannot know, as no such thing appears on the record. A charge of insufficiency is made in the petition, and a bill of exceptions to the decision of the court in refusing the respondent the privilege of having the sureties examined. Testimony may have been introduced to show their insufficiency, and the judgment of the court may have been predicated on their insufficiency. We are bound to presume that judgments of inferior courts are correct unless the contrary be shown; but where error has intervened which may have operated prejudicially, the injured party is entitled to a reversal.

Judgment reversed and cause remanded.  