Watson v. Halsted, Taylor & Co.

By the Court. Lumpkin, J. delivering the opinion. Jacob Watson, holding, an execution, by assignment' from277 Fellows, Wardsworth & Co. against Halsted, Taylor & Co. caused it to be levied on the property of Robert N. Taylor, one of the defendants, who arrested the fi. fa. by an affidavit of illegality, on the ground that it had issued without authority of law. The facts are these: The original execution was returned to the office, with the entry of “ no property,” by the Sheriff. Upon being applied for by Watson,, the transferee, it could not be found; whereupon the Clerk issued this alias fi. fa. in accordance with the practice which then prevailed in the Southern Circuit. ■ This alias fi. fa. was levied on the property of Taylor, one of the defendants, when the property was claimed by him, as guardian; and upon the trial of the claim, the Jury found the. property not subject. [1.] Under these circumstances, while we hold that an alias: fi.fa. cannot issue upon the- mere motion of the Clerk, but by authority alone of the Court, upon proof being furnished as to the loss of the original, and of the proceedings which had been had thereon, (all of which should be set forth in the’order directing the alias fi. fa. to issue,) still we think the objection in this case comes too late. [2.] It should have been made in 1846, when this alias execution was first levied. The irregularity could then have been, cured, as the seven ■ years statutory bar or limitation had not at that time attached. The present case comes fully within the principle laid down in Evans vs. Rogers, (1 Kelly, 463,) that “ whenever proceedings in Court are irregular, application to set them aside should be made in the first instance,” and that “ if the party, after discovering the irregularity, proceed himself and take subsequent steps in the cause, or lie by and suffer the other party to do so, the Court will not assist him.” Judgment reversed.