Duncan v. Harris

Tlie opinion of the court was delivered by Rogers,, J. I agree with the counsel for the.defendant in error, that a motion should have been made in the Court of Common Pleas, to set aside the testatum fierifacias, instead of coming into this court for relief, in the first instance/by writ of error. The Court of Common Pleas could have inquired into the transaction in relation to the release of the'execution and.return of the sheriff, vvhich the Supreme Court are in general precluded froth doing. . Enough, however, appears to satisfy us, that the plaintiff’s exception Gannot be sustained. There is no doubt of the general rule in relation to such returns, as between third persons, which are uniformly held to be an extinguishment of the debt. That is. not this ease; for the present is.an attempt by the defendant himself, to have the benefit of the rule, when it is manifest the debt has not been paid. The •hogs were levied on by the sheriff-, and were released, for what cause does not, nor is it necessary to appear, by the plaintiff’s attorney, with' directions, that the writ should not be executed. The property never went to the use of the plaintiff, but was returned to the defendant. It would be a strange perversion of a principle to convert such a transaction into a 'satisfaction of the debt. Execution affirmed.