
    JANUARY TERM, 1844.
    Fall and Howard v. The Commissioners of the Sinking Fund.
    If the indorsement on a writ shows the amount of the note sued for, it is a sufficient compliance with the statute.
    The Circuit Court compelled a trial of a case at an earlier day than that at which it had been set down for trial by the clerk; held, to be error.
    This was an action of assumpsit, to the December term, 1842, of the Circuit Court of Hinds county, brought by the Commissioners of the Sinking Fund, against George R. Fall and Volney E. Howard, upon a promissory note' for $3500. The defendants pleaded non-assumpsit.
    The indorsement on the writ, after describing the note sued on, correctly states that “ the amount sought to be recovered is $2500, with interest,” &c. On the 13th day of July, 1843, being the 22d day of the term, the case was called for trial, all the cases before it on the docket having been called, when it appeared, that before the commencing of the term, it had been set down by the clerk for the 25th day of the term. Whereupon, the counsel for the defendants stated that one of the defendants was an attorney, and anxious to be present at the trial; he had informed the counsel he had a good defence, and wished to know when the case would be called ; that the defendants were absent, and he therefore objected to going into the trial at that time. The Court overruled the objection, upon the grounds that no subpoenas had been issued for witnesses, and there was no evidence before the Court, except the note sued on, and directed the case to be given to the jury. The counsel for the defendants filed their bill of exceptions, and now bring the case to this Court by writ of error. ,
    
      Wrn. Yerger, for plaintiffs in error.
    1. It.was error to take judgment for more than the amount claimed by the indorsement of the cause of action. The statute makes it the duty of the clerk, or attorney, to indorse the true amount demanded. H. & H. Dig. 577, s. 5.
    2. It was error to try the case before the day set for trial by the clerk in apportioning the docket. The statute is peremptory that no cause shall be taken up “ at a day previous to that for which it may be set.” H. & H. 619. Vide .also this act explained by the act of 1823 ; Rev. Code, 247, ch. 43.
   Mr. Justice Thacheb.

delivered the opinion of the Court.

This was a writ of error to Hinds county. Two points are made by the plaintiffs ip error. 1 st. That the indorsement upon the writ, of the cause of action, represents the plaintiffs below to claim only $2500, with interest thereon, whereas the judgment was for $3500, and interest on that amount.

The record seems irregularly put together, and presents the writ’s indorsement after the pleadings. It however shows the amount of the note sued upon to be $3500, and a sufficient compliance with the statute.

2d. It is objected, that the trial of the case was compelled by the Court below at an earlier day than that at which the case had been set down for trial by the clerk.

The record shows a state of facts in accordance with this objection. The statute, H. & H. 619, s. 27, requires the clerk of circuit courts, under control of the Court, to apportion the causes on the docket for particular days of the term, for trial, and declares that no cause shall be taken up for trial at a day previous to that for which it may be set. The courts are therefore left without a discretion in this particular, and a deviation from the statutory rule is error.

The judgment must be reversed, and a new trial granted.  