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



The defendants in behalf of the wife
Jane Z. Flint, fled 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 a judgment
in attachment in favor of plaintiffs ia
error against one Edward B. Mosely, the
father of defendant in error Jane 4.
The bill states that many years before
the time of filing said bill, the said Mosely
gave the said negro boy, child, TO his
said daughter, that on her intermarriage
with John ID. Flint, she took said boy
home with her and retained possession Oi
him until afterwards in the year s-
one Vernona constable, came to her housf
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 oil the levy oi
the attachment Of Gates and Pieasants 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
confesso 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-
MES from information the gift, charges
that il 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
Z. Flint. as stated in the bill, nor does he
state that Imman the constable who claims
10 have levied the attachment. ever had
the possession Of the boy George, under
bis original levy. He denies that Jane
+. Flint had no notice of the levy Of ms
attachment &c.
Advancement is filed showing the
1 claim and bond &c, filed by Jane r,
T Flint, and records waived. The testlmo
nv Of Jane T. il taken in open court, who
+ proves the GIT from her father. ard that
the boy has been in her pos=esaicn ever
since she gave the claim bonds TO Vernon
I &c, &c. Objections are urged against the
/ competency Of her testimony on several
/ grounds, al of which it Is not material %
/ consider in the view we take Of this case
/ On the bill and answer it must be taken
/ as true that the boy George never was le
I gally in the possession Of the officers whe
/ claims to have levied this attachment. i
4 he eUer made levy il was abandoned bl
I him, or the levy was void for want Of poe
session Of the property beyied on. Per
sOnal property ccnnot be levied on with
out taking II into the possession Of th'
/ officer or his agent.
The levy being the only foundation o
the Judgment, in a proceeding by attach
ment against personal property, If then
was no levy, or If the officer never took .
into his possession at AL, the whole pro
ceedings founded on il were void a. Z
that property.
The court should therefore, have Sc
aside the Judgment and order OF sale up
on the attachment below, 50 far a. tn
boy George is concerned as well - tn
levy. and decreed that the same should b
held for naugbt But il should not hav'
directed a trial Of the right Of property
a. no such issue could be had or tried, NJ
on a void levy.
Let the decree be reversed, and deere
rendered IN this Court. setting aside an
annulling the levy on the boy George, tn
Judgment, and order Of sale under H. an
all the proceedings affecting the DO.
George, had under said levy and attach
meut. HAKEIs.