Walker v. Gilbert

Citations

• 21 Miss. 693

Syllabus

<p>Before a joint maker of a note, against whom a judgment is rendered in conjunction with his co-maker, can, under the act of 1822, (Hutch. Code, 558,) prevent a levy of the execution upon his property, on the ground that he is a mere surety of his co-maker, and that his principal has property in the county, he must make oath that he is only surety; and this rule is not changed by the act of 1837, which forbids the creditor levying on the property of a surety or indorser, without having first made and filed an affidavit that the principal has no property in the state, out of which the money can be made. The latter act applies to the case where the fact of suretyship or relation of indorser, as required by the law, ife placed upon the execution ; but where the relation of surety or indorser does not so appear, the act of 1822 is in full force.</p> <p>It is therefore no foundation for a supersedeas of an execution against one, who, being a defendant in a joint judgment, alleges himself to be a mere surety therein, that the creditor has levied it on his property without having made the required affidavit that the principal had no property in the state. He should have first filed his own affidavit that he was a surety ; without which no affidavit could be required from the plaintiff.</p> <p>To justify the circuit court in superseding a levy and sale under execution, on the ground of the levy being excessive, the excess must be so glaring as to indicate a disposition to abuse the process of the court; a levy upon six slaves under an execution for $900, with ten years of interest due, is not of that character.</p>