Parce v. Halbert

Headnote

An action brought against a sheriff, under sections 34, 35, 36 and 37, of title fifth, chapter 6, part 3 of the revised statues, (being penalty for irregular sale of real estate,) the declaration alfo combining counts for goods, wares and merchandise and money counts, and the defendant obtains judgment for costs; the plaintiff is liable to imprisonment on a ca. sa. upon the judgment.

Motion by plaintiff to set aside ca. sa. for irregularity and to be discharged from imprisonment.—The plaintiff moved on the ground that the ca. sa. purported to have been rendered in an action of assumpsit and in an action founded upon contract, and therefore he was not liable to imprisonment. The plaintiff declared against the defendant, “ that defendant was indebted to the said plaintiff in the sum of one thousand dollars, according to the provisions of sections 34, 35, 36, and 37 of title 5, chapter 6 and part 3 of the Revised Statutes, &c.” together with a count for goods, wares and merchandise, and money counts. The defendant succeeded on the trial and obtained judgment for costs: upon which a ca. sa. was issued, and plaintiff imprisoned. The ca. sa. recited

the sections of the statute referred to, and also that the plaintiff on the trial introduced proof under that count, in the declaration, (being the penalty for irregular sale of real estate.)