
    Thompson vs. Mitchell, executor.
    1. It is doubtful, if a sheriff fails to levy on property pointed out by a defendant in fi. fa., and levies on other property, whether it would furnish a ground for stopping the collection of the fi. fa.; but if the sheriff oppresses him, he may sue that officer.
    2 It is the property of the defendant in fi. fa. in his possession which he may point out for levy, under certain circumstances. That the sheriff failed to levy on land pointed out by the defendant, which he held under bond for titles, but to which he did not have title, fur» nished no ground for an affidavit of illegality. Cobb’s Dig., 510; Code, §3641.
    3. The sufficiency of property pointed out to pay the debt is left to the discretion of the levying officer.
    February 19, 1884.
   Jackson, Chief Justice.

[A fi. fa. against Thompson in favor of Cheatham, and controlled after his death by his executor, was levied on certain cotton, and defendant interposed an affidavit of illegality thereto, on the ground that the judgment was based on promissory notes given for part of the purchase money of a tract of land which he had bought from Cheat-ham, and to which he held a bond for titles; 1 hat he pointed out this land to the sheriff for levy, but the latter refused to levy on it, and levied on the cotton instead. It was also alleged that some payments had been made, but they were not set out.-

On motion, the affidavit was dismissed, and defendant injfi. fa. excepted.]  