Blanchenay against Burt, Hodgson and Burton
| Jurisdiction | England & Wales |
| Judgment Date | 17 May 1843 |
| Date | 17 May 1843 |
| Court | Court of the Queen's Bench |
English Reports Citation: 114 E.R. 1064
IN THE QUEEN'S BENCH
S. C. 3 G. & D. 613; 12 L. J. Q. B. 291; 7 Jur. 575.
[707] blanchenay against burt, hodgson and burton. Wednesday, May 17th, 1843. A writ of execution issued on a judgment more than a year old without a sci, fa. is not absolutely void, but voidable only: and if not actually avoided, such writ is a justification to parties sued in trespass for causing it to be executed. [S. C. 3 G. & D. 613 ; 12 L. J. Q. B. 291; 7 Jur. 575.] Trespass for assault and false imprisonment. Pleas, by Hodgson and Burton, that Burt recovered judgment against plaintiff in the Court of Queen's Bench in an action upon promises, and that Hodgson and Burton, as attorneys for Burt, for having execution of the judgment, sued out a ca. sa. against plaintiff, and delivered it to G. and F., then being Sheriff of Middlesex, who arrested plaintiff under the writ, as they lawfully, &c.; which are the alleged trespasses, &c. Verification. Replication: that the writ of ca. sa. " was and is void, irregular and of no effect" in this, to wit that it did not issue within a year and a day after the judgment, but after a longer lapse of time, to wit, &c.; that the ca. sa. was the first writ of execution issued on the judgment; and that execution of the said judgment was not hindered or prevented by writ of error, injunction, cesset executio, agreement or any other matter, &c.; and that the judgment ought to have been revived by sci. fa. before execution. Verification. Rejoinder. That the ca. sa., at the time when, &c., was in full force, and was not then or at any other time reversed, annulled or set aside. Verification. Demurrer, assigning for causes that the rejoinder does not confess and avoid or traverse the allegation that the ca. sa. was void, irregular and of no effect, but has *Q B.70S. BLANCH EN AY V. BURT 1065 introduced and attempted to put in issue mat-[708]-ters of fact not alleged nor necessary to be alleged, that is to say that the said writ of ca. sa., at the said time when, &c., was in full force, and was not then or any other time reversed, annulled or set aside; and for that, if the said writ of ca. sa. was void, it was of no effect, although not get aside; and that the said rejoinder is no answer to the said replication to the said second plea, but is evasive and argumentative; and for that it is not alleged or averred in the said rejoinder that the said writ of ca...
To continue reading
Request your trial
- Citrus Growers Association Ltd v Brown
-
Brown v Citrus Growers Association Ltd (2 Judgments: Shelley, Edun)
...find this statement: “An action will not lie for an arrest on final process upon a subsisting unsatisfied judgment ( Blanchenay v. Burt [1843] 4 Q.B. 707; Huffer v. Allen L. R. 2 Ex. 15; 36 L. J. Ex. 17); but if the party arrested can get the judgment set aside for irregularity or on any ot......