7 Blackf. 389 | Ind. | 1845
— Scire facias by Ezra against Manlove, replevin-bail for one Sumner, commenced before a justice of the peace. The cause was before this Court at the May term, 1843, when it was remanded for further proceedings. At the June term, 1844, of the Circuit Court, the defendant, by leave of the Court, filed four additional pleas. The first states that before issuing the scire facias in this behalf, and before the fi. fa. referred to in said sci. fa. was issued, to wit, on the 6th of February, 1840, the justice issued a fi. fa. on said judgment against Sumner, the original debtor, which was delivered to a constable of the township duly commissioned, &c., by which he was commanded to levy, &c.; that the con
The execution of the 6th of February, 1840, was issued before the expiration of 150 days, the time for which the judgment against Sumner had been replevied. Ezra, the plaintiff, had no agency in procuring the writ. It was issued on the application of Manlove; and the question is whether he has brought himself within the statute which authorizes, in certain cases, an execution to go on a judgment that has been replevied, before the expiration of the replevy. Unless he has done so, the writ was void, and all proceedings under it were consequently invalid. The 49th section of the Rev. Stat. 1838, p. 374, provides that when any bail for the stay of execution shall become apprehensive that, by execution
To say nothing about the question of departure that is raised by the demurrer, we are of opinion that the rejoinder is defective in not showing that Manlove brought himself within the statute. An execution could issue only as authorized by the statute, and it is a general rule that in asserting a right founded on a statute, the pleader should aver every fact necessary to inform the Court that his case is within it.
— The judgment is reversed with costs. Cause remanded, &c.