Armitage v. Rector, Ratliff & Co.

62 Miss. 600

• Court: Mississippi Supreme Court
• Decided: April 15, 1885
• Status: Published

Opinion

Arnold, J.,

delivered the opinion of the court.

The motion to quash the writ and dismiss the cause was properly overruled. The statute provides that any justice of the peace may issue attachments in cases within his jurisdiction as to amount, returnable before himself or any other justice of the peace of any district in which the defendant or any of his property or effects may be found (Code, § 2475, Acts 1884, 78), and the affidavit and bond in such case is to be returned to the court to which the writ is made returnable. Code, § 2416. If the affidavit, writ, and bond were filed in the office of Hunter, as alleged, they must have been returned by him afterward to Collins, since it appears from the transcript of the latter, filed in the circuit court, that they were a part of the record in the cause in his court.

The writ of attachment should have designated the justice of the peace before whom it was returnable, but as the defendant in attachment appeared before Collins on the return-day named in the writ and made no objection thereto, no injury resulted to him on account of the defect in the writ.

It was error to instruct the jury that the deed of assignment was fraudulent and void on its face. It cannot be said that the deed expressly conferred upon the trustee any power to do an illegal act, or that it impressed the will of the grantor upon the future management of the trust-estate in such manner as to injure his creditors, or that it was clearly fraudulent and it should not have been condemned as such by the court. Mattison v. Judd et al., 59 Miss. 99. The provision in the deed in regard to the payment of attorneys is of doubtful meaning, but upon well-settled principles any doubt which arises in the construction of the instrument must be resolved in favor of its validity. Mattison v. Judd et al., supra.

Reversed.