Roberts v. Weiler & Haas

Citations

• 55 Miss. 249

Syllabus

<p>1. Scire Facias. Discharge in banlcruptcy, when not a defense.</p> <p>A discharge in bankruptcy obtained by a defendant before the rendition of a judgment against him, but not then pleaded, cannot afterwards be set up as a defense to a scire facias to revive such judgment. The failure of the defendant to plead his discharge is a waiver thereof.</p> <p>2. Justice oe Peace. Jurisdiction by act of 1870.</p> <p>The act of 1870, which provided for the transfer of all cases in which the amount in controversy did not exceed $150, except those on appeal, depending in the Circuit and County Courts, “upon the adoption of the present Constitution,” to justices of the peace, had reference to cases pending in such courts at the date of the adoption of the Constitution. And the words “upon the adoption of the present Constitution ” did not import the condition that the operation of the statute was dependent upon the future adoption of the Constitution, it having already been adopted.</p> <p>3 Attachment. Property replevied. Value to be assessed.</p> <p>“Where attached property has been replevied, section 1448 of the Code of 1871 requires that the jury trying the case shall assess the value of such property, and if its value equal the amount of the debt found due, judgment shall be entered against the defendant and the sureties on his replevin bond for the amount of the debt; but if its value be less than the debt found due, judgment shall be entered against the defendant for the amount of the verdict, and against his sureties for the value of the property. Where a replevin bond, in such a case, shows that the officer who made the levy and took the bond valued the property at an amount exceeding the debt sued for, and the justice of the peace who tried the case rendered judgment against the principal and sureties in such bond for the amount of the debt sued for, it must be presumed, on a proceeding by scire facias to revive the judgment, that the justice judicially ascertained