The Daily clarion. [volume] (Jackson, Miss.) 1866-1888, 1867-04-18
DECISIONS OF THE HIGH COURT
ERRORS AND APPEALS.
OCTOBER TERM, 1866.

| NO. lUSOI, W..
Watt, Noble g. Mobley,
The Opinion Of The Court Delivered %
Chief Justice Handy.
This was q motion in tho Holmes circuit
Court by the plaintiff in error. at May term
1866, to quash writ of feH Jacids IN fay0l
Of the defendants In error against James y
Walton and the plaintiffs in error, Wad.
aud Wright, issued on the Goth March, 1850
and returnable to said May term. Inc
grounds Of the motion are;
1st, That Walton, one OF the defendants
was dead ut tho date of the execution, and
the Judgment had not been revived as 70
him, nor his death noted on the execution.
I'd. That an execution had been issued
on the Judgment in December, 1860, return
able to May tenn, 1861 which was levied IN
April, 1861, on three slaves, the property oil
Wade, and sufficient to satisfy that oxecu'
ton, and there had been no legal disposition
of that leyy--and that said levy was SAT
isfaction of the judgment
On the hearing Of the motion, the plain
tiffs in error read the execution OF DecemDer
1860. and the Sheritf's return on it, in these
words; Executed April 30, 1861, by levy
ing on the following negro slaves, to-wlt
Nella, Lucy aud Harriet; Jas. IL. Rogers,
Sheriff, by Dept'y," and the execution OF
March, 1866, showing levy on certain real
and personal property of the defendant
Wade, not including the slayes.levied on
under the previous execution. 4,
| 1t was then proved that the slaves levied
ON id April, 1861, were of sufficient
value to pay tie execution,
and that they remained on the
plantation of Wade after the levy that one
OF them remained there until the summer
of 1865, when she left, and that the other
two have ever since continued there.
They proved by Richardson, the deputy
Sheriff, who levied the execution in 1861,
that after he levied on the slaves mentioned,
he left them with Wade till called for by
the Sheriff for sale that he left them with
| Wade, knowing that he was solvent and that
| he could ret them when called for, and that
| he left them with, Wade as his agent and
| for witness conyenience-that the slaves
were never called for or delivered to the
Sheriff, nor sold by him.
Wade testified that after the slaves were
levied on, he asked the deputy Sheriff what
he was going to do with them, and lie re-
Piled that he would leave them there, and
Wade replied that, if he did, he would work
them that they were left there and he held
them subject to the order of the Sheriff;
that he worked them from the time of the
levy, and has never accounted for their
hire or labor that they were assessed as
his property and he paid the taxes on them
up to the time of the surrender of the Con-
federate army and all that time had them
in his possession.
The plaintiffs in execution then introduced
Rogers, the Sheriff at the time said levy was
made, who testified that Wade wanted to
raise the money and not to have the negroes
sold, and was averse to having them sold,
but that witness would have sold them at
~ ho1
for some conversation which Walton and
Wright had with Watt, one of the plaintiffs
in the execution and that Watt told wit
ness to "hold on until he saw him again, and
not to press the boys"-that the levy was
never released. Watt, one of the plaintiffs
in the execution, testified that he had con-
versation with Walton and Wright, in the
spring of 1861, at which he thought Wade
was present, in relation to the Indebtedness
of the defendants; that he could not state
positively, but thought that Wade was to
ship him cotton to pay his part OF the debt
Wade, in rebuttal, testified that he never
agreed to ship Watt any cotton; but that he
wanted to get the money if he could, and
not to have the negroes sold; that he had no
recollection of having any conversation with
Watt about the matter. Both of the last
named witnesses state that the levy OF 1861,
was not released. There was some other
testimony, but it is not material.
The Court overruled the motion, and the
case is brought here.
1t is conceded, that the negroes levied on
under the execution in April, 1861, have be-
come free in virtue of the political action of
the Government of the United States since
that time, and were not subject to be taken
in execution by the Sheriff when the fert
facias sought to be quashed was issued.
This was an of -- the levy, and dis
penses with the necessity of a writ of rendi-
toni erponas in order to dispose of the prop
erty levied on, or to show that it could not
be sold in satisfaction of the execution.
The emancipation of all the slaves in the
State was q matter of public policy of the
United States, fully established and noto-
rious. To issue an execution in order to seize
and sell negroes which had previously been
levied on under an execution, or to show
TIE execution subject to be taken and sold
in satisfaction of it, would, therefore, have
been vain and useless act. Hence, there
is no force in the objection, that if any exc
cution could have been properly issued in
1866, it should have been renditiOni er-
D0nds.
But the main ground of the motion is, the
execution was satified by the original levy;
md it is now insisted, in behalf of the plain
lifts in error that by that levy, Wade was
Invested of his property in the slaves which
became the property of the
Sheriff for the benefit of the plaintiffs, not
the slaves remained in the
possession of Wade, who became the mere |
'ailee of the Sheriff, who had the right to |
AXE them from his possession at any time |
fter the levy; and that this divestiture of |
property under the circumstances was in
aw satisfaction of the execution.
III support of this view. several cases in
his Court are relied on, and especially Ker-
haw vs. Merchants Bank of New York, T.
low. 1893, and Brown VS.. Kidd, "a Miss. 1893
In the former of the cases, the Court uses
le following language which is much relied
q by counsel: "A levy on a sufficiet amount
property is satisfaction of the execu-
on. By the levy the property is chang
and the defendant is discharged whether
le Sheriff wastes the property or not.
0 new execution can issue after such {
Wy, and if it shonld, it will be quashed c
T irregularity To take defend
IT'S property, is as much satisfaction as
take his money, and whilst the levy con-
lues, the plaintiffs recourse against the
PENDANT is at an end" [
But other parts of the opinion in that case
ow that the Court meant that such levy
IS only prima Jacie satisfaction. 1t was
mere case of prima .facie satisfaction, that
0 Court had before it; and the levy was
Id to be q satisfaction only in case the A
of satisfaction arising from it,
Is not removed by showing that the prop =
~ levied on had been legally disposed of :
that the defendant had not been deprived 7,
it by the levy. For, says the Court, "if a
, levy should be legally removed, then, of
lrse, the parties are restored to their orig
il rights and liabilities"
But this is more fully stated in the second
10 referred TO. 1.-THE rule is too well set an
d." says the Court, that a levy upon an
'sonal property is prima ,fdcie a satisfac- &
n of the execution levied, to admit of con-
yersy And the reason of the rule is that, be
the levy, the defendant is IN lao deprived of M
property, which, until the contrary is made
Ippear, is presumed 10 hare been disposed of -
Ne Sheriff; and whether it is applied by :
Sheriff to the payment of the execution
lot, it operates as satisfaction in law.
Is rule operates as a discharge of
defendant from the Judgment, unless the v
sumption Of satisfacti0R be destroyed by sHE- v
MT proof" And all the cases in this s.
Irt referred TO hold the same rule. an
uch levy, then, is but prima Jacie a sat cal
ction, proceeding upon the reason that, are
irtue oft the defendant has been de- q.
red Of his property levied on. And the sls
stion, therefore, in this case is, whether rs
-