From the circuit court of Lee county.

IIon. Newnan Cayce, Judge.

John A. Carter, trustee, for Carter Bros. & Co. and others, -brought this action of ejectment against Haywood Brandy to recover certain laud. Brandy being a mere tenant of J. H. Allen, the latter was admitted to defend.

The plaintiff claims the land as purchaser at a sale under a decree of the chancery court of Lee county, rendered in an attachment suit of Carter Bros. & Co. against G. B. Oliver, G. W. Barrett and others. Oliver was a non-resident, and was summoned by publication only. The complainants were creditors of Barrett, who had transferred to Oliver a stock of merchandise, which complainants sought to subject as having been fraudulently conveyed. Neither Barrett nor Oliver appeared, and, after decrees pro confesso against them, on March 20, 1891, a final decree was rendered, holding Oliver liable to complainants because of the fraudulent purchase of the goods, and, as the value of the goods exceeded the debt due complainants, the decree directed that the labels of Oliver which had been attached should be sold to satisfy the debt. From that decree Barrett prosecuted an appeal to this court, and the decree was affirmed January 25, 1892, the court holding that there was no error in the decree as against Barrett, the sole appellant. See Barrett v. Garter, 69 Miss. 593..

Subsequently, a writ of venditioni exponas was issued on said decree, and on January 2, 1893, certain lands therein decreed to be sold were sold, and appellant, John A. Carter, became the purchaser, taking the title to himself as trustee, and this action of ejectment was brought by him, February 13, 1893, to recover possession. Allen claims under a conveyance from the said Oliver, who is thus the common source of title. The case was tried, bj' consent, before the court without a jury, and, after plaintiff had offered the record of the proceedings in the attachment suit in chancery, the defendant moved to exclude the testimony, because the debt attached for in the chancery suit was not of the character of debts for which attachment lies, and because no bond had been given under § 1902, code 1880 (§ 491, code 1892), before the issuance of the writ of venditioni exponas.

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