Wright v. Watson

By the Court.

Lyon, J.,

delivering the opinion.

This was a common law execution against the property of a married woman, in the hands of her trustee, issued from a judgment rendered upon a suit, or proceeding, authorized by the Act of 5th March, 1856, entitled, “an Act to enable persons who have claims against trust estates, to recover said claims in a Court of law, and to prescribe the manner in which the same may be done.” The execution having been levied, the trustee filed an affidavit of illegality to the same, on various grounds, among others, this: “That the fi. fa. does not specify the property to be levied on, in compliance with the Act of the Legislature.” The Court below, on hearing the same, sustained the affidavit of illegality, and quashed the writ.

The fifth section of the Act, on which this proceeding was based, expressly enacts, that “all executions issued upon judgments rendered under the provisions of this Act, shall specify, in the body of the execution, the property on which the execution is to be levied, and it' shall be levied on no other.” This execution does not specify the property on which it is to be levied. It, therefore, could not legally be levied on any property, was illegal and void, and the Court properly so held.

Judgment affirmed.