General
W. J. Purnell v. E. Semans
7 Del. 3992 Houst. 399·Delaware Superior Court·1861·DE
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Opinion
W. J. Purnell v. E. Semans.
If a fi. fa. has been issued on a judgment recovered before a Justice of the Peace, and not returned by the constable, another Js. fa. and venditioni exponas cannot be issued upon it, without first resorting to a writ af scire facias upon it to enable the defendant to show, if he can, that the debt had been levied and collected on the former Ji. fa.
Certiorari in which the record showed that a writ of fi. fa. had been issued on the judgment, but not that it had been returned by the constable, and that a second writ of fi.fa. and also a writ of venditioni exponas had afterward been issued upon it. The error assigned was the irregularity in issuing the second fi.fa. before the first had been returned.
[MAJORITY — By the Court:]
By the Court:
That is fatal on the ground oí irregularity, as the plaintiff under the circumstances should have first resorted to a writ of scire facias to enable the defendant to show, if he could, that the debt had been levied and collected on the first fi.fa. The second fi.fa. and venditioni exponas must therefore be set aside.