Virginian-pilot. (Norfolk, Va.) 1898-1911, 1899-06-21
COURT DECISIONS.
Notes of Cases Recently Decided,
Which are of Interest to
Our People.
DIGESTED BY W. B. MARTIN.
(Excluolvely for Virginian-Pilot)
MITCHELL v. SIMS.

Supreme SQUIRT of North Carolina.
April H. 1899.
PROPERTY HELD UNDER EXECu-
TION AGAINST A THIRD PERSON
IS SUBJECT TO REPLEVIN UN-
DER CODE SECTION 800.
EVIDENCE THAT THE DEBTOR
HAD, WHILE IN POSSESSION OF
THE PROPERTY. ASKED OTHERS
TO SEND THE PROPERTY OR IFS
PROCEEDS. TO HIS WIFE, is AID
MISSIBLE TO SHOW OWNERSHIP
OF THE PROPERTY.
This was an action by Mrs. Mitchell
against the defendant, the sheriff of
Person county, to recover mule which
he had levied on under an attachment
against plaintiffs husband, she aI!eg-
ing that the mule was her properly.
The mule had been taken in exchange
for a horse by the husband. and pii5rIrr-
tiff testified that the horse her
property and when she heard her hus
band had traded it she had claimed
him. She offered to Drove by two wit
ncsses that al the time of the exchange
her husband had directed the mule sent
her. or il 1t could be sold for $50 .that
the money should be sent her. bus the
lower court excluded this evidence.
There was n Judgment for defendant
and plaintiff appea.ed.
The court says:
We think it Ghc above evdence)
competent. and that it should have been
received. The husband was in possess
sion Of the property, and what he said
at the time of the exchange was some
evidence that the plaintiff had some
right or interest in the property, and
was entitled to the possession of it,
The 6pfannn in hfa
that he had held the mule under the
levy of the attachment until it was
taken from him by the plaintiff under
proceedings in this action. and he i'm
sisted that this action could not be
maintained by the plaintiff, for the
reason that at the time when it was
seized by the plaintiff 1t was in Gus
todia legis. This case. then presents
again for consideration the construc-
ton of the chapter OF the Code C'Claim
and Delivery of Personal Property'D in
respect to the cases that come within
it's operation.
In the case OF Jones V. Ward II N. c.
337, this court held that the words of
the statute Code. section 322) were as
broad as they well conld be. and in
cluded any case that could be imagined,
with the specified exceptions in subdi-
vision Of that section In that case
there had been a levy upon personal
property by n constable, and he had
taken the same under an execution
properly Issued to him. The plaintiff.
not the Judgment debtor in the execu-
ton, Instituted against the constable
an action for the possession of The pro-
perty levied upon, ana sought and had
the immediate delivery of IT to him.
This court held that the action could
he maintained; that the statute would
be prohibition against n debtor in an
execution WI property mad been
seized under execution from claiming
the same by suit for its recovery
against the oti!cas-srho- had iiiaa.a-.h.-
levy. but that a third person wo,l,d
have the right to do so In the case Of
creditor and debtor, the court said in
that case: The creditor has es;,b
lished his right to the debt by iudr
ment, and the defendant is not al, YEA
TO opstruct the execution by writ of
repievin. In the case of n third per
son, me court said: The right of the
property is an open question and there
can be no reason why third party.
alleging ownership. should not have The
same remedy against one wrongdoer as
aga inst ano. her"
The case before the court does not
conflict with what was decided in
Williamson V. Nealy 1l9 n. {, 400 IT,
that case the sheriff. who alrnoIy roih
the property under an order made in
claim and delivery proceedings. under
look TO levy upon it under n varrnp.
or attachment in favor of n creditor
against the defendant in the claim ana
delivery proceedings. The court hnl1
that the levy under the attachment yyos
Invalid, because by such proceeding
me process. in the claim and delivery
proceeding. could not be interfcrod
with, and that the property had tn he
delivered to the claimant under the or
der of the court to that effect. In othar
words. In actions for the recovery Of
personal property wh-a The immediate
delivery of the property is sonrbt
me broad language of the sta,
.ute gives the right to the claimant,
upon his executing the bond rennirad