
    JANUARY TERM, 1842.
    The Bank of Port Gibson vs. S. Dickson, Tax Collector.
    A fictitious case, to test a right to do a particular thing, will not be entertained by the high court of errors and appeals.
    Where a record was filed in this court, being an appeal from a circuit court, presenting the question of the right of the tax-collector to assess the capital stock of the bank, which was one of the parties to the appeal, and it appeared by the admission of the attorney.of the bank and the certificate of the auditor of the state, that no tax had been levied upon the capital stock of said bank: Held, that it would be improper to decide the question involved in the record j that the case was a fictitious one, and must be dismissed.
    On appeal from the Claiborne circuit court.
    A motion was made, in this case, to dismiss the appeal, because there was in fact no such question involved between the parties, as the record presented. The record contained a petition to the board of police of Claiborne county, from the Bank of Port Gibson, to be released from the payment of the tax assessed upon their capital stock; the board of police rejected the prayer of the petitioners, and they removed the petition to the circuit court of the county, who affirmed the action of the police court. An appeal was thence taken to this court.
    The counsel for the bank admitted that there had been no assessment of the capital stock of the bank, and stated that the error had arisen from the mistake of counsel.
    A certificate of the auditor of public accounts was filed to the same effect, with reference to non-assessment upon the capital stock.
    The court delivered the following opinion.
   Per Curiam.

The Bank of Port Gibson presented a petition to the board of police of Claiborne county, to be released from the tax assessed on the capital stock, but the prayer of the petitioners was refused, and the matter.taken to the circuit court, from which it comes up by appeal. The counsel for the bank now informs us that no assessment was made on the capital stock, but that the assessment was on money loaned. The auditor’s certificate shows, that for that year there was no assessment on the stock. Of course, then, there could be no real question as to the liability of the stock to taxation, and the decision of such a question would be improper. It is said that the object was to test the right to assess a tax on the money loaned, but that the petition improperly, and by mistake, brought in question the right to assess a tax on the capital stock. The counsel on the other side insists that the case must be decided as it appears by the record ; but as we are assured that no such real question was made, and this being manifest from the auditor’s certificate, we must strike the cause from the docket, as a fictitious one.  