Fenner v. Boutte

Decided October 15, 1894

Mississippi Supreme Court · decided 1894-10-15

FroM the circuit court of Washington county. HoN. R. W. WilliamsoN, Judge. Appellant, C. E. Fenner, sued out an attachment before a justice of the peace against appellee, E. Boutte, and caused the same to be levied by the sheriff on a horse which, at the time, was being kept for the defendant at a livery stable. Defendant executed a forthcoming bond, which was accepted by the sheriff.

Decided 1894-10-15

Cooper, C. J.,

¶1delivered the opinion, of the court.

¶2The motion to quash the levy of the writ of attachment should have been overruled. By executing the forthcoming bond the defendant admitted the validity of the levy, and is now estopped to deny it. Walker v. Shotwell, 13 Smed. & M., 544; Jayne v. Dillon, 28 Miss., 283.

¶3If the defendant had not admitted the levy, it may be that the plaintiff in attachment, discovering that the property had been seized by the constable, would have placed his writ in the hands of that officer and thus have secured a levy.

¶4Judgment reversed.