
    No. 37.
    Huntington & Holcombe, plaintiffs in error, vs. Daniel McLeod, defendant.
    
       A claimant, who upon the question of -payment of the execution levied upon his property, has had the issue found against him, has no right to come into Court subsequently and move to have they?, fa. entered satisfied, and returned to the Clerk’s office, in order to protect his land from sale, which has been found subject.
    Rule, in Dooly Superior Courl. Decided by Judge Powers. April Term, 1852.
    This was a motion to have a fi. fa. returned to office satisfied. The fi. fa. was in favor of Huntington & Holcombe vs. Daniel McLeod; and it appeared by the statement of the attorney for the motion, that the real party moving, was Irvin Bullock; who it was shown, had been a claimant in a case in which the question in issue was, whether or not this fi.fa. was still unsatisfied.
    In the claim case, the Jury had found the property subject; thereby determining that the fi.fa. was in force. Bullock then had made an affidavit of illegality, which at the term of Court, he dismissed, and instituted the present proceeding, on which an issue was submitted to the Jury, who found against the motion.
    Whereupon counsel for the motion excepted to sundry rulings of the Court.
    Hall & Hall, Lyon & Clark, for plaintiffs in error.
    Warren, for defendant.
   By the Court.

Lumpkin, J.

delivering the opinion.

In viewr of what the Court considers the legal merits of the case made in this record, we deem it unnecessary to consider any of the questions made in the bill of exceptions.

It is shown by the testimony of General Eli Warner, the attorney of Irvin Bulloch, that the motion in this case, was made at his instance, and for his benefit. We recognize no right in Bulloch to make this motion. He had no status in Court which would authorize it; he had claimed property which had been levied on by this fi. fa. and the issue had been found against him; and on that trial it -was proven that the execution was not satisfied, and so found by the Jury. To prevent the sale of the land, he again comes before the Court, and seeks the benefit of a second trial upon a point which had already been decided against him. Upon the fact being disclosed to the Court, that Bulloch was the movant in this rule, it was the duty of the presiding Judge, ex mero motu, to have dismissed it. And the cause is remanded with this instruction.  