Buckner v. Terrill

16 Ky. 29, 1 Litt. Sel. Cas. 29, 1808 Ky. LEXIS 1

Opinion

Opinion of

the Court.

AS the errors assigned relate only to the proceedings by the ministerial officers, the clerk, sheriff, &c. none of which, except one, have been complained of in the inferior court, the principles decided by the case of Smith vs. Carr,* forbid an inquiry into any but that which was adjudicated by the inferior court; that is, that the execution ought to have been quashed, because it was issued after the death of Terrill, who was the plaintiff below. To this objection it is proper to observe, that the original fi. fa. had been executed, and one or more writs of venditioni exponas had issued thereon in the lifetime of Terrill. The fi. fa. being executed, could not abate by the death of Terrill, and the subsequent writs of venditioni exponas were only in the nature of a continuation of the original execution; and, therefore, it could not be necessary to issue any scire facias whatever.

Judgment affirmed.

Vide the case of Wagnon vs. M’Coy’s Executor, 2 Bibb 196, for the law where the plaintiff dies before the execution is levied. The present case is unquestionably law as to all executions on replevin bonds, and all executions which cannot be replevied.

Footnotes

*

Hard. 305