The Daily clarion. [volume] (Jackson, Miss.) 1866-1888, 1867-04-18

thopropcrty, and not have II taken ana ton ny
the sheriff, he took the haz I'D Of all caaualnes
and mlsfortunes by which II might be lost or
destroyed, and the loss, which has been tne re-
suit Of his possession, should not fall upon tho
plaintltIsin the execution, who received no
benefit from the property remaining unsold.
II is immaterial TO the merits OF this ques-
ton, that Wade occupied the position OF q
bailce Of the property after the levy, and that
the sheriff could, at any time, have asserted his
right Of property In the negroes against him.
For he was deprived Of nothing by the levy,
and had the full use and benefit Of the proper
ty, by his own consent and In consequence OF
that, the negroes were not applied to the satls,
faction Of the execution, but were discharged
from Its operation by emancipation.
II Is said that, by virtue Of the levy, the ne
groes became the property OF the sheriff for the
use of the plaintiffs In execution, and were so
at the time Of the emancipation; and, therefore,
that the loss should fall on the plaintiffs but
this was mere special property Tor INC Pur-
poses Of execution, such as would enable nun
TO maintain trespass or troyer against any one
who might take possession OF them. watson
on Sheriff, 19l. The title of.the defendant can
only be absolutely Invested by sale Of the sher-
III, and whilst the property remains IN tne
beneficial use and possession OF the defendant,
by his own consent, 1t cannot, with ANY pro,
priety be said, that his title was diyested ana
transferred TO the sheriff. The injury which
has resulted to the defendant by the einancipa-
ton Of the slaves, Is In consequence OF his own
act in retaining possession OF the property,hhu
In not submitting 10 u sale when the levy was
made. II was for his own benefit, and ny ms
own consent, that this was done, and the mis-
fortune which caused the loss OF the properly,
should fall ON him and not upon the plain'iLs
In the execution, II comes withih inc
maxim, Udlenti non ft ifjurid. All
The true rule upon the subject OF salts acuon
Of an execution by reason OF levy on personal
property, Is thus stated by the supreme court
Of North Carolina In Expartn King 2, Div. 54l
"1he seizure of personal property under
ia, Is constructively discharge OF the gent,
But If the defendant were never deprived OF MS
property by the sheriff, or If he were, and got
1t back, either with or without the consent OF
the sheriff, Il would be monstrous to say tne
defendant had paid his debt. The levy on
property Is not actual payment, when
the law always aims at 1t Is only
constructivelv SO, to prevent wrong
II is deemed payment'in those cases, where
IL it were not the defendant would be twice
deprived of his property on the same judg-
ment. In all other instances 1t is no pay
ment." And this rule is adopted by this
court in Bank VS.. Evans 10 s. g. NJ. 80, 81.
The only remaining ground of the motion
is, that the execution was issued without
noting on the writ the death of the defend
ant Walton, as required by Rev. Code $40,
art. 269.
This statute appears to have in view the
protection of the rights of the deceased de-
PENDANT, but to have no application to the
co-defendant, who are living. In case of
the death of one of them before the issuance
of the writ, the provision is, that his death
shall be noted on it, to the end that his prop
erty shall not be taken in execution under
it, But the property of the survivors is liza
BILE without such noting, because the provis-
ion has no reference to them. Their proper
ty is liable to execution in the same way as If
their co-defendants had been alive when the
writ was issued.
Let the Judgment be affirmed.