28 Miss. 810 | Miss. | 1855
delivered the opinion of the court.
A judgment was rendered in the year 1840 against the plaintiff in error, on which execution was issued, and in April, 1841, was levied on certain personal property of the defendant, who thereupon executed a delivery bond, conditioned to deliver the property to the sheriff at the May term, 1842, in virtue of the provisions of the statute of 21st February, 1840, (Hutch. Code, 915). This bond was returned forfeited, and an execution issued thereon in pursuance of the statute under which the lands of the plaintiff in error, the defendant in the execution, were sold at sheriff’s sale, and purchased by the defendant in error. And this action was brought to recover possession of the lands.
The only question presented here is, whether the lands are exempt from execution under the statute of 22d January, 1841, the delivery bond upon the forfeiture of which the execution issued being executed after the passage of that act.
We think it clear that the lands were not exempt from the execution.
In the first place, the exemption only prevails as to contracts made after the passage of the act, and the contract on which the judgment in question was rendered was made before the passage of the act. The delivery bond cannot be regarded as the contract contemplated by the statute. It is mere process provided by the statute as a means of having execution of the judgment, and at the same time of giving indulgence to the defendant; and as such, it was under the power of the court, and liable to be quashed as process of the court. The statute had reference to a contract made between the parties, upon which judicial proceedings should be or had been instituted, and not to the legal steps or process which might be allowed the defendant in the course of suit, judgment and execution to enforce that contract.
The judgment is affirmed.
