Perry v. Lewis

Citations

• 49 Miss. 443

Syllabus

<p>1. Exemption Laws_The theory, as well as the text, of the exemption laws, is, that the property cherein enumerated shall he exempt from seizure and sale, under execution and attachment. Code 1857, art. 280-1.</p> <p>2. Same — Acts 1865, Page 137_This statute indicates two modes to determine prima facie the right of exemption. The one, - in case of doubt, the sheriff may summon three disinterested citizens to resolve' it. Section 4. The otner, the judgment debtor may designate the property specially claimed as exempt. Section 6. “ And any officer who shall levy or seize property exempt, etc., shall be liable to an action of trespass, or on the case.”</p> <p>3. Same — Rule at Common Lay. — The rule at common law was that the sheriff must lenow, at his peril, that the property seized is liable to the writ. If he made an improper seizure, although actuated by good faith, and in mistake, the remedy of the party aggrieved was trespass for the unlawful taking and asportation.</p> <p>4. Eoemek Recovery — General Principle, — 1The general principle is that a judgment between the same parties for the same cause of aotion is conclusive, as between them. The first action must be competent to dispose of the suit on its merits. The first action is not a bar to the second, if the judgment were rendered for faults in the declaration or pleadings. The true test is, whether the same cause of action was litigated and adjudicated in the former suit. The form of the action may be different, but the grievance and wrong complained of, must be the same in both suits. Agnew v. McElroy, 10 S, & M., 552.</p> <p>5. Case in Judgment. — Although the first action may be misconceived, and might have been defeated for that reason, yet, if the defendant makes no objection, but pleads to the merits, and there is vordict and judgment and satisfaction made, this is a bar to the second suit, for the same cause, and plaintiff will not be heard to object that the first action was improper, and ought no