Cutler against Colver

Cutler against Colver. htobeen*Íencd, the plain-withdraw it, and issue a ca- Judgment being against the defendant, who had not puf in special bail, the plaintiff issued a fi- fa- returnable at the present term, with which the Sheriff called on the defendant, xvho said he had no personal property to satisfy it, but he had real estate, which he pointed out to the Sheriff. This real estate being heavily encumbered by previous judgments, &c. the plaintiff took back the fi- fa. and gave the Sheriff a ca. sa. which he executed. The defendant being in prison, a motion was now made for his discharge, and the only question was, whether taking back the fi.. fa. and issuing a ca. sa. was, under the circumstances, regular. [MAJORITY — Curia.] Curia. Had there been no effort, on the part of the Sheriff, to execute this fi. fa. it would be, at least, questionable whether the plaintiff might not have withdrawn it and taken his ca. sa. But here was a virtual levy of the fi. fa. after which it could not be withdrawn, its execution should have been completed. The ca. sa. must be set aside, on the defendant’s stipulating not to bring false imprisonment. Rule accordingly. 12) Vid. Sloan v. Wattles, 13 John. 158;