Gibson v. Hughes

Opinion of the court by

Turner, Justice.

The complainant has not shown enough to entitle himself to the protection of the court against a levy on his property. The statute which exempts the property of indorsers from execution until a levy is made on that of the drawers and acceptors, is in derogation of the principles of common law, and must receive a strict construction. The plaintiff at law has complied with the statute; and if he has sworn falsely in his affidavit, he is subject to the penalties of the law.

If the complainant, who was the indorser on the note or bill sued on, wishes to invoke the aid of the courts of justice in protecting his property from levy and sale, he must do his part fully and fairly. He has not pointed out and identified the property of his principal, in such manner as to enable the creditor or sheriff to make the levy.

The decree of the chancellor must be affirmed, without prejudice.