Fenner v. Boutte
Mississippi Supreme Court
FroM the circuit court of Washington county. HoN. R. W. WilliamsoN, Judge. Appellant, C. E. Fenner, sued out an attachment before a justice of the peace against appellee, E. Boutte, and caused the same to be levied by the sheriff on a horse which, at the time, was being kept for the defendant at a livery stable. Defendant executed a forthcoming bond, which was accepted by the sheriff.
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FroM the circuit court of Washington county. HoN. R. W. WilliamsoN, Judge. Appellant, C. E. Fenner, sued out an attachment before a justice of the peace against appellee, E. Boutte, and caused the same to be levied by the sheriff on a horse which, at the time, was being kept for the defendant at a livery stable. Defendant executed a forthcoming bond, which was accepted by the sheriff. On the trial, defendant moved the court to quash the levy, on the ground that the horse, when seized by the sheriff, was already in the custody of a constable by virtue of a levy in another attachment suit…
1Opinion of the CourtCooper, C. J.
The motion to quash the levy of the writ of attachment should have been overruled. By executing the forthcoming bond the defendant admitted the validity of the levy, and is now estopped to deny it. Walker v. Shotwell, 13 Smed. & M., 544; Jayne v. Dillon, 28 Miss., 283.
If the defendant had not admitted the levy, it may be that the plaintiff in attachment, discovering that the property had been seized by the constable, would have placed his writ in the hands of that officer and thus have secured a levy.
Judgment reversed.
2Cases cited1 opinion
- Jayne v. DillonMississippi Supreme Court · 1854