Armistead v. Bernard
Mississippi Supreme Court
Appeal from the Circuit Court of Tate County. Hon. A. T. Roane, Judge. This action of replevin was instituted on the 11th day of February, 1884, by J. H. Bernard, as trustee in a deed of trust, against John Armistead, to recover the possession of two mules.
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Appeal from the Circuit Court of Tate County. Hon. A. T. Roane, Judge. This action of replevin was instituted on the 11th day of February, 1884, by J. H. Bernard, as trustee in a deed of trust, against John Armistead, to recover the possession of two mules. The defendant filed a plea in abatement, stating in substance these facts : The mules were seized in March, 1883, under a writ of attachment in a suit in the Federal court at Oxford, wherein Armistead & Lundee were plaintiffs and N. W. Ward & Co. were defendants, but they were delivered back to one of the defendants upon his giving bond as…
1Opinion of the CourtCooper, J.
Section 2633 of the Code of 1880 only forbids the institution of an action of replevin to recover property held by an officer by virtue of an execution or attachment. It has no application to a controversy between private individuals, even though the defendant claims as a purchaser under a sale made by the officer.
While the property remains in the hands of the officer, the party must interpose, his claim in the manner prescribed by the statute,, but a failure to so present and prosecute his claim does not operate as a waiver of his title, which may be asserted against any party in whose…
2Cited by1 opinion
- Woolner & Lowenstein v. Spalding ex rel. HeardMississippi Supreme Court · 1887