Vandruff v. Craig

Treat, C. J. The only order made in the case, of which the plaintiff in error can complain, is the one setting aside the execution. But this court cannot say that it was erroneously made. The evidence upon which the decision was based, does not appear in the record. It should have been preserved by a bill of exceptions. Corey v. Russell, 3 Gilman, 366. The affidavit forms no part of the record. Even if it could be properly considered, the order could not be reversed. Other evidence may have been introduced on the hearing of the motion. It may have appeared from the process itself, or from the previous proceedings in the case, that the execution was improperly issued. The court simply decided that the writ should be quashed. It did not determine the rights of the parties under the judgment. It left the plaintiff at full liberty to sue out another execution, or pursue any other remedy for the collection of the judgment. It did not decide that the defendant Whitney had any valid defence to the judgment. If he has such a defence growing out of the proceedings in bankruptcy, it is yet to be interposed and established. The judgment is affirmed. Judgment affirmed.