25 Miss. 213 | Miss. | 1852
delivered the opinion of the court.
The principal question presented by this record is, whether the act of 24th of February, 1844, (Hutch. Code, 891,) commonly called the “ enrolment law,” applies to judgments rendered by justices of the peace.
By the act of 15th of December, 1830, (Hutch. Code, 701,) it is declared that all judgments obtained in, and executions issued from any justice’s court, shall bear equal dignity with judgments and executions of a circuit court, and shall bind the property of the defendant from the date of the judgment.
The “ enrolment law ” made it the duty of the clerk of the circuit court to enter upon the “judgment roll” on the applica
We have no doubt that judgments rendered by justices of the peace come within the mischief designed to be remedied by the act of 1844; and unless expressly or by necessary implication excluded, the act should be made fo apply to them. It is said in answer to this view, that the act in terms only applies to the judgments of courts of record, and that justices’ courts are not courts of record, and, therefore, not embraced in the act. If the judgments of justices of the peace are not the judgments of courts of record, there would be much force in this argument.
But, we think, under the constitution and laws of this State, that the courts held by justices of the peace for the trial of ■civil suits, though inferior and limited, are yet courts of re■cord. In the first place, the act of 15th of December, 1830, declares, that the judgments and executions of justices’ courts shall bear equal dignity with the judgments and executions of a circuit court. In the second place, by the same act, it is .made the duty of every justice of the peace, to “keep a fair and legible book of entry of all civil proceedings had before ■him for the recovery of debts; ” which book, on his resignation or removal, is to be delivered to his successor, or deposited with the clerk of the probate court. Again, appeals to the circuit court are tried on “transcripts of the records” of the justices’ courts. Plutch. Code, 694, et seq.
It will be seen from these provisions of the statutes, that the -courts held by justices of the peace for the trial of civil business, possess every necessary quality of a court of record, which is nothing more than a court, “ whose judgments, and all the previous proceedings thereto, are carefully registered and preserved under the name of records, in public repositories set apart for that particular purpose.” Black. Com. Int.
Secondly. The contest in this case is in relation to a slave levied on by,virtue of sundry executions issued by a justice of the peace. The executions were against John H. Brian, and
It was contended in the court below, that the slave was not subject to execution, because the defendant had other property on which the execution could have been levied. The words of the statute are, that “ no constable shall be authorized to levy on any negro, unless there is no other personal estate sufficient to satisfy the debt,” &c. Hutch. Code, 701. Under this act, we think, the officer is justifiable in levying on a slave, if he cannot find other personal property of the defendant. If the defendant wish to exempt his slave he should point out other property. Where a third party claims the slave by virtue of a purchase from the judgment debtor, if the return of the constable shows that he could not find other property, he can only-have relief in a court of equity, which on a bill stating the facts, and showing the other property subject to the execution, would compel the judgment debtor to resort to that property. This application should be made before a sale under the execution, or otherwise the purchaser would get a good title to the property sold. If the return of the constable did not show that the defendant had no other property to be found, a court of law might relieve.
Judgment reversed, and cause remanded.