Baylor v. M'Gregor , 5 Port. 103 ( 1837 )

GOLDTHWAITS, J.

The only question which requires the consideration of this Court, is, whether the writs of fieri facias and venditioni exponas, with their returns, which appear in the record, are properly a part of it. If they are, the decision made by this Court, in the case of Baylor vs Scott,^* must gov-era. If these writs are not a proper part of the record, the judgment of the Court below is not shewn to be erroneous.

These writs are certified to this Court, by the clerk of the Court below, as a part of the proceedings in the cause; but we are now called on to reject and discard them from our notice, because they were not set out in a bill of exceptions.

Whenever a judgment is sought to be satisñed, or a writ of execution quashed or superseded, for matters which are intrinsic to the cause, and which appear of record, it would seem to be wholly unnecessary to spread out, by a bill of exceptions, facts which must appear in the proceedings, and which form a part of the entire case. A motion to supersede or quash an execution, or to enter satisfaction on a judgment, is one incidental to the cause; and if any decision thereon is sought to be reversed, the record of the cause, or such parts as may be necessary to shew the action of the Court, may well be certified; and if sufficient is not sent up to explain the judgment of the inferior Court, the defendant in error can always protect himself from injury, by applying for a certiorari.

When a motion incidental to a cause, is depen-dant on facts, which do not appear of record, a party and always have the advantage of revising the judgment of the Court, by setting them out in a bill of exceptions, which becomes a part of the record.

The case before us, seems to have been heard on the merits; which could only take place by having the record before the Court.

The writ of supersedeas was properly sued out, on facts which are supported by the record, and should not have been quashed.

The judgment must be reversed and remanded, with instructions to the Court below, to quash the writ of venditioni exponas.

* 2 Porter 315.