1 D. Chip. 267 | Vt. | 1814
The opinion of the Court was delivered by
There appears to have been too little atten
In this case, two objections have been made to the admission of the record, in support of the plaintiff’s title.
1. That the execution through which the plaintiff attempts to derive his title, has no judgment to support it. ' The execution recites a judgment of June term, 1810 ; but the record is of a judgment, entered up, June term, 18Of. The Court consider this an irregularity; there is no record to support the execution, as issued. It cannot be admitted, that the taxation of additional costs, and the award of execution, at June term, 1810, which were incidents in the suit, had the effect to bring forward, and fix, as of that term, a judgment which had been fully made up and entered of record, at a former term. In a trustee suit, execution is sometimes necessarily awarded.at a term subsequent to that, at which the judgment was entered up against the principal debtor, but the execution must recite the judgment, as of the term when it was entered up.
The 2d objection is, that the execution includes two separate and distinct judgments, one against Taft, the principal debtor, and one against Barnes, the trustee. The Court think this is also a fa" tal irregularity, as is very apparent from the explanation which has been given of the proceedings under the trustee act. The judgment against the principal debtor, and the judgment against the trustee, are distinct and separate judgments, to all intents and purposes, and can no more be joined in the same writ of execution, than separate judgments in favor of the saíne plaintiff, against several defendants in different suits.
In examining the record we find another fatal irregularity, which has not been adverted to by the counsel on either side. It appears that the principal debtor had absconded, and did not reside in this