State ex rel. Hunt v. Spencer

¶1DEBT on a sheriff’s bond against the principal and his sureties. Breach, the sheriff’s failure to return an execution in favour of the relator, &c. Two pleas as follows: I. That

¶2when the execution came to the sheriff’s hands, the execution-defendant had no property within the sheriff’s bailiwick whereof to make the money or any part of it, but was then and still continued to be notoriously insolvent. 2. That at the time when the execution came to the sheriff’s hands, and at the time when it should have been returned, viz. on, &c., the relator had no interest in the execution or the judgment on which the same issued, nor was he entitled to any part of the money due thereon, &c. Held, that these pleas were bad on general demurrer. Held, also, that the declaration was bad; it containing no averment of a judgment on which the execution issued (1).