Magruder v. Buck

56 Miss. 314

• Court: Mississippi Supreme Court
• Decided: January 15, 1879
• Status: Published

Opinion

Campbell, J.,

delivered the opinion of the court.

The judgment against Mrs. Magruder, on which was issued the execution by virtue of which Buck, as sheriff, seized the property sued for in this action, was void, because it does not appear from the record of it to have been in a state of case in which she, being a married woman, could lawfully contract. Griffin et al. v. Ragan et al., 52 Miss. 78.

The judgment being void, the execution to enforce it does not entitle the sheriff to hold the property seized by virtue of it, against the writ of replevin sued out by Mrs. Magruder.

The ground on which the judgment mentioned is pronounced void is, that the declaration on which it was rendered, while describing Mrs. Magruder as “doing business as a feme sole” when the declaration was filed, does not aver that she was “ engaged in trade or business as a feme sole ” when the contract declared on was made, or that it was “ made in the course of such trade or business nor is there any'statement of facts from which it can be inferred that such was the case; nor is there in the judgment any thing to aid the' declaration.

The contract described in said declaration is'not'one which married women generally are empowered to make, and the declaration does not show that the married woman declared against was engaged “in trade or business as a feme sole” when the contract was made, or that, if she was, it was “ made in coui’se of such trade or business,” and the judgment is by default.

Judgment reversed and new trial awarded.