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Edson, Appleton et. al. vs. 239 Irish vs. Cloyes et. al.
30 Edson, Fletcher vs.
294 Isham's Adm'r Raymond vs. 258 Edson, Bryant vs. 325 Ives vs. Wallingford,
224 Edyerton, Hitchcock vs. 202
205 Egerton vs. Hart, et. al. 207 Jones, Dyar vs. Emmerson et. al. vs. Washburn, 9
57 Emmerson vs. Udall,
357 Keyes, State vs.
L Emmerson et. al. vs. Hyde, 352
Lamb vs. Day et. al.
79 Lewis vs. Avery, et. al.
287 Fairfield vs. Hall,
68 Lord vs. Bigelow, et. al. 445 Fassett vs. Vincent, 73 Lyman, Clark vs.
290 Ferriss vs. Barlow,
90 Fletcher vs Edson, 294 Maeck, Colony vs.
114 Fletcher et. al. vs Crooker, et. al. 314 Mattocks vs. Bellamy,
463 Foster, Clark vs. 98 Marsh, Brown vs.
310 French, et. al. Raynolds et. al. vs. 85 Merriam, Probate Court vs. 234
Middlesex, Stiles vs.
436 Gaffery vs. Austin,
70 Miner, et. al. Castleton vs. 209 Gale, el. al. Pierson vs. 509 Morrill, Gillman et. ux. vs
74 Gallup, et. al. Taylor vs. 340 Morse, Hayes vs.
316 Gilman et. ur. vs. Morrill,
N Goddard, Williams vs.
492 Nason et. al. vs. Smalley et, al. 118 Graves vs. Adams, 130 Newell, Adams vs.
190 Gray vs Sheldon, 402 Newsane, Adams vs.
271 Green, Hart et. al. vs. 191 North-Hero, Pawlet vs.
196 Guilford, Briggs vs.
276 Hale, Cushing vs.
38 Hall, Allen vs.
146 Hall vs. Hall,
196 Hall, Sweat vs.
334 Hall, Fairfield vs.
509 Hall et. al. vs. Brooks,
400 Harding vs. Cragie,
Probate Court vs. Merriam, 234 Hart et. al. vs. Grein,
396 Hart, et. al. Edgerton vs.
272 Haselion vs. Weare
480 Hayes vs. Morse,
316 Hitchcock vs. Egerton,
202 Raymond vs. Adamr. of Isham, 258 Holcomb vs. Stimson,
141 R 'ynolds et. al. vs. French, et. al. 85 Holland et. al. vs. Osgood, 276 Rice vs. Clark,
104 94 Hopps, et. al. Chamberlain vs.
Rice vs. Clark,
109 220 Hosford, et. al. Howe vs.
Ridley, Winoskie T. C. vs. Howe vs. Hosford, et. al.
Rix, Adamr. vs. Smith's heirs, 365
151 Huntley, Bigelow vs.
Roberts, Day et. al. vs. Hutchins, Bromley vs. 194 Kublee vs. Chaffee,
256 Hyde Emerson et. al. vs. 352 Rupert, Baldwin vs.
Sweat vs. Hall,
402 Tyler vs. Wbitney,
15 Udall, Emerson vs.
419 Wallace et. al. vs. Barker, State vs. Keyes,
57 Wallingford, lves vs. State, vs. Essex Bank
489 Warden vs. Burnliam,
223 Washburn, Emerson et. al. vs.
48 Webster vs. Seymour, et. al.
231 Wilkins, Steam-Boat Co. vs.
214 Wilkins vs. Stearns, Steward vs. Downer,
320 Wilkins, Stevens vs. Stiles vs. Middlesex,
436 Williams vs. Goddard Stimpson, Holcomb vs.
141 Winooskie T. C. vs. Ridley, Story, Sibly vs.
15 Wood vs. Dudley,
440 224 390
9 480 135 26 54 214 231 492 404 430
CHITTEND EN COUNTY,
JANUARY TERM, 1836.
PRESENT, Hon. CHARLES K. WILLIAMS, Chief Justice.
EMERSON & Orvis vs. JASON WASHBURY.
The plaintiff in ejectment on mortgage, when defendant obtains a decree of
foreclosure and time to redeem, is entitled to tako his writ of possession and execution for costs on the expiration of the time set for redemption and the
terms of the decree not complied with. The day of the expiration of the time set for redemption, is the day of final
judgment; and the day following, being the first day on which plaintiff is entitled to execution, is the first of the sixty days within which plaintiff must aver a non est inventus return on the same in order to charge bail on
mesne process. The bail in such caso are not discharged by the operation of the decree either
on the ground that it extends the time more than sixty-days from the rendition of final judgment, or that tho costs are inerged in the decree.
This was an action of scire facias against bail on mesne process. The original suit was ejectment for lands mortgaged by one Guy C. Burnham, to the plaintiffs. The body of the mortgagor being attached, this defendant become bail. After judgment for the plaintiffs in the original suit against Burnham for the seizin and possession of the premises demanded, he interposed his motion under our statute for time to redeem, upon which the usual decree was made and the usual time given. After the expiration
CHITTENDEN, of the year given to redeem, and no redemption, the plaintiffs, in January,
less than thirty days, caused the writ of possession and execution Emerson & for costs, to be put into the hands of a proper officer and a non
est inventus to be duly returned. The declaration was drawn Washburn. with usual formality. The defendant in the court below de
murred generally and the plaintiffs joined.
The county court rendered judgment that the declaration is sufficient and the plaintiff recover, to which the defendant took exceptions and the question comes before this court for revision.
Mr. Hill for defendant.—1. In this case the scire facias was not issued within one year from the time of rendering the final judgment which is necessary._Rev. Stat. p. 66, sec. 29.
2. The execution must be taken out within thirty days from the time final judgment is rendered and put into the hands of some officer proper to levy and serve the same.—Rev. Stat. p. 68, sec. 34-do. p. 87, sec. 95-do. 93, no. 8.
3. The decree includes the amount due in the condition of the mortgage deed, and the cost of suit. The court can make no other valid decree in the case. They have got the land and that discharges the bail.—Rev. Stat. p. EO, sec. 76—do. p. 95, no. 13.
4. The judgment in the action of ejectment is satisfied by their taking the land, and if they prove any further claim they must sue Burnham, and cannot pursue the bail.—3d Vt. R. 581.
Mr. Maeck for plaintiff. The declaration being demurred to generally, the only question is, whether it sets forth in substance a good cause of action against the defendant. It is believed that the defendant can raise but iwo objections of any plausibility against the plaintiff's action. 1. That the execution did not in fact issue within thirty days from the time judgment was actually rendered. 2. That plaintiffs having taken possession of the land, it operates as a satisfaction of the debt and costs against his principal.
The first objection might be easily answered independent of the act of 1804, Stat. p. 98. But that statute, framed for the purpose of meeting this case among others, affords a conclusive answer to the objection. This act enacts that the day on which a plaintiff shall first be entitled to his execution on a judgment in his favor, shall be deemed as the time in which judgment is rendered for the purpose of charging the bail. The act embraces this case, and the plaintiff's declaration shows he has complied with its provisions.