Cases Argued and Decided in the Supreme Court of Mississippi (Volume 8) (Paperback)

Purchase of this book includes free trial access to www.million-books.com where you can read more than a million books for free. This is an OCR edition with typos. Excerpt from book: Ross, Appellant, v. Garey. In a trial of the right of property, the execution levied is a necessary part of the evidence.;is showing the plaintiff's right to proceed against tiie properly. An affidavit in support of a motion for a new trial is not of record, unless made so by a bill of exceptions. When a circuit judge takes a case under advisement in vacation, in pursuance of the statute, that fact should appear by an entry on ihe record. When a judge takes a motion for a new trial under advisement in vacation, it will not suspend the judgment, unless a memorandum is antered on the record that the cause is under advisement. On a motion for a new trial in a proceeding to try the right of property, which is brought up for review, the bill of exceptions must contain the creditor's execution. The proceeding for the trial of the right of property taken on execution is assimilated by the statute to the action of detinue, and the onus, therefore, lies on the plaintiff in the execution. IN ERROR from the circuit court of the county of Carroll. William B. Ross having obtained judgment against Marvel M. Garey and others, for the sum of six thousand two hundred and thirty-four dollars, together with interest and costs, on the 5th day of July, 1839, in the circuit court of Carroll county, sued out an execution on the 23rd day of July, 1839, which was levied on the 5th day of September, 1839, on twenty negro slaves. Allen Garey claimed the slaves, and made affidavit, and gave bond for the trial of the right of property in the same, as the statute directs; and an issue having been made up in the case, and submitted to a jury on the 17th day of October, 1839, a verdict was found for the plaintiff in the execution, upon which the court gave judgment, to wit: that the slav...