Perine v. Babcock

PER CURIAM.

— It is evident that the rejection of the execution cannot be maintained on the reason assigned by the Circuit court in the bill of exceptions. If the lien of the attachment was destroyed by the execution of the replevy bond, it could in no manner affect the validity of the execution issued subsequently on the judgment, and authorise its exclusion from the jury. It must be that “execution” is inserted in the bill of exceptions, by mistake or inadvertance, in lieu of “ attachment.” We notice this, not because we possess the power to correct or reform the bill of exceptions, but that injustice may not be done to the circuit judge by this presumed mistake in the question actually decided by him. If the bill of exceptions is correct, (and we must so consider it, for the purposes of reversal or affirmance,) the error is apparent.

If we consider that it was the attachment, and not the execution, which was excluded, the opinion expressed by the Circuit court is nevertheless incorrect, and though formerly a question of doubt and difficulty, was finally settled by the decision of the case of McRae vs. McLean, (2 Porter, 138.)

Since the decision of that case, the same point has received the confirmation of the Supreme court of the United States—(Lucas vs. Hagan, 10 Peters.) After these repeated decisions, the point may be considered at rest.

The judgment is reversed, and the cause remanded.