The eastern clarion. [volume] (Paulding, Miss.) 1837-1863, 1861-04-19
HANDY.
Gates & Peasants
VS..
John D. Flint. ct al.


The defendants in behalf of the wife.
Jane E. Flint filed their bill in the
Chancery Court to enjoin the sale of the
slave George, claimed to be the separate
property of the wife, levied on by virtue
Of an order of sale issued on judgment
in attachment in favor of plaintiffs in
error against one Edward B. Mosely, the
father OF defendant in error Jane E.
The bill states that many years before
the time of filing said bill, the said Mosely
gave the said negro boy, a child, to his
said daughter, that on her intermarriagp
with John D. Flint, she took said boy
home with her and retained possession OF
him until afterwards in the year -
one Vernon constable, came to her house
and took said boy out of her possession by
virtue of several attachments, in all OF
which she filed her claim, affidavit and
bond according to law, and the boy was
returned to her, and has remained in her
possession ever since, these attachments
having been since disposed of. That
she was wholly ignorant Of the levy OF
the attachment of Gates and Peasants on
said boy George, or she would have given
bond as in the other cases, and interposed
her claim &c.
The bill prays an injunction, that the
Judgment and order of sale be set aside,
as to the boy George &c.
An answer is filed by Gates, and pro
coniesso taken as to Imman, the constable
who claims to have levied this attach
ment without taking the property into
his possession. Gates in his answer de-
nies from information the gift, charges
that it was fraudulent, that the boy
George belonged to her father Mosely-
| admits the levies of the several attach
ments by constable Vernon, that bonds
&C., were given and property replevied,
does not deny that the property imme-
diately returned to the possession Of Jane
E. Flint, as stated in the bill, nor does he
state that Imman the constable who claims
| to have levied the attachment, ever had
the possession of the boy George, under
his original levy. He denies that Jane
f. Flint had no notice of the levy Of his
attachment &c.
advancement is fled showing the
claim and bond &C., filed by Jane E
Flint, and records waived. The testimo
nv of Jane E. is taken in open court, whC
proves the gift from her father, and tha
the boy has been in her possession eve
since she gave the claim bonds to Vernon
&C., &C. Objections are urged against tn,
competency of her testimony on severn
grounds, all of which it Is not material q
consider in the view we take OF this case
, On the bill and answer it must be takel
as true that the boy George never was le
| gally in the possession of the officers wh'
claims to have levied this attachment. l
he eUer made levy it was abandoned b.
, him, or the levy was void for want OF pos
| session of the property bevied on. PEI
, sonal property ccnnot be levied on with
! out taking it into the possession OF tn
officer or his agent.
r The levy being the only foundation Q
! the Judgment, in proceeding by attach
! ment against personal property, ther
, was no levy, or if the officer never took
, into his possession at all, the whole pre-
ceedings founded on it were void as .
: that property.
I The~court should therefore, have sc
4 aside the Judgment and order OF sale az
on the attachment below, so tar as N
= boy George is concerned IS we'll as IN
levy. and decreed that the same should
= held for naught. But it should not hav
!. directed trial Of the right OF propert!
g as no such issue could be had or tried, ul
1 on a void levy.
let The decree be reversed, and deere
= rendered in this Court, setting aside an
Z annulline the levy on the boy George, th
Judgment, and order of sale under 1t, an
= All the proceedings affecting the be
Z Z George, had under said levy and attacl
= ment HARRIS.