Yarborough v. Harper

25 Miss. 112

• Court: Mississippi Supreme Court
• Decided: October 15, 1852
• Status: Published

Opinion

Mr. Justice Fisher

delivered the opinion of the court.

The plaintiff in error brought an action of replevin in the circuit court of Carroll county. The defendant resisted the action, on the ground that he had levied on, and taken the property in controversy as an officer,'by virtue of an execution against the property of one Hendricks. The court below instructed the jury, that this was a good defence to the action.

The execution only authorized the officer to levy on and take possession of the property of the defendant therein. "Without the execution, he could not have taken the property of the debtor. It gave him no authority to seize the property of third persons,, and he could not, therefore, justify under it.

It is true the owner could have made his claim to the property under the statute, but he was not compelled to rely alone on this remedy. He had his choice of actions, under the claimant act, replevin, or trespass. If the property were not liable to the execution, then the officer could not legally levy on it. He can only justify under process where he had a right to levy.

Judgment reversed, and cause remanded.