File contributed for use in USGenWeb Archives by:
Deb Haines email@example.com December 7, 2005
Source: Reports Of Cases Adjudged In The Supreme Court Of Mississippi, June Term, 1818
Written: June 1818
HUBERT & HUBERT vs. O. C. WILLIAMS.
It is irregular to issue execution after the death of the defendant in the judgment, and before revival of his representatives.
OPINION OF THE COURT—BY THE HON. POWHATTAN ELLIS.
Writ of error sued out to Lawrence circuit court. Execution issuing after a party is dead, and before revival, is irregular, as we have heretofore decided, and if we suffer such executions to stand, great injustice may be done to the rights of the creditors. And the reason given by Lord Kenya is—The moment a party is dead, the rights of his creditors are fixed. A judgment debt is a debt of a superior nature, and when docketed is to be paid before simple contract debts. The defendant’s legal representatives could have no notice of this judgment, and might be paying debts of an inferior nature which, upon the suggestion of adevastavit, and issuing of a sci fa, would render him liable for the payment of all such debts de bonis propriis. 6th Term, R. 369—2 Strange 882, 7th Term. R. 24.
Judgment of the court below reversed, and venire facias denovo awarded.
Source: Reports of Cases Adjudged in the Supreme Court of Mississippi, June Term, 1818, By R. J. Walker, Reporter of the State. Natchez: Printed at the Courier and Journal Office, 1834; pages 175.