Milburn v. State ex rel. Ray
Supreme Court of Missouri
APPEAL from St. Louis Circuit Court. 1. The writ and the return thereof, being prescribed by the statute, it is not in the power of the party, the clerk, or even the court, to cause a different writ to be issued. And so, the writ was void from the beginning. 3 Mo. R., 286, Holliday vs. Cooper; 5 Wend. R., 276; 9 Wend.
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APPEAL from St. Louis Circuit Court. 1. The writ and the return thereof, being prescribed by the statute, it is not in the power of the party, the clerk, or even the court, to cause a different writ to be issued. And so, the writ was void from the beginning. 3 Mo. R., 286, Holliday vs. Cooper; 5 Wend. R., 276; 9 Wend. R., 338. 2. The writ being void, the sheriff was not bound to execute it or return it at all. 3. But if not void, still its requirements being inconsistent, the sheriff ought to obey the most important requirements, to the neglect of the least important, when both cannot be…
1Opinion of the CourtNapton, J.
This was an action on the official bond of Milburn, as sheriff of St. Louis county, and the breach assigned was, that Milburn did not return, a certain execution as he was commanded to do. The defendant pleaded, *1901st, non est factum; 2nd, that he did return the execution on said 13th November, 1843; 3rd, that he returned the execution during the term at which it was returnable; 4th, that defendant kept back the execution with the knowledge and consent of plaintiffs. Issue was taken on these pleas. The defendant by leave, filed as additional pleas, 1st, that the execution was not returnable to…
2Cases cited1 opinion
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3Cited by6 opinions
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- State ex rel. Ross v. CaseSupreme Court of Missouri · 1883
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