
    MARSEILLES v. GARRIGUES.
    November 23, 1839.
    
      Rule to shoio cause why the fieri facias should not he set aside.
    
    1. Where a plea of freehold for a stay of execution is entered by a defendant, the plaintiff may issue execution, but at his peril.
    2. If the plaintiff issues execution notwithstanding the plea, on defendant’s motion to set it aside, if the freehold be found sufficient, the motion will be granted, and plaintiff will be compelled to pay the costs of the execution—if the freehold is found insufficient, the execution will be good.
    3. On the plea of freehold being entered, the plaintiff may move to dismiss it for insufficiency.
    4. In determining on the sufficiency of the freehold, the defendant need only show the existence of the freehold affirmatively; it then rests with the plaintiff, if he objects, to show its insufficiency by records and certificates of search as to incumbrances and the like.
    ACTION to September term, 1839, No. 927. October 26, 1839, judgment for want of an appearance. November 1, 1839, defendant pleads his freehold for a stay of execution, under the act of 16th June, 1836, relating to executions. November 4,1839, damages assessed at 1465 dollars 87 cents. November 15,1S39, plaintiff issues a fieri facias.
    
    Defendant obtained this rule to show cause, and on the hearing of the rule produced title deeds of real estate in this county.
    
      F. E. Brewster, for plaintiff,
    objected that the plaintiff did not produce the usual certificates of search, in order to show that the estate was unincumbered.
    
      
      J. M. Scott, for defendant,
    said it was the duty of the plaintiff to show incumbrances if they existed. He said, moreover, that if the estate was incumbered, which he denied, the issuing of the fieri facias was irregular, while the plea of freehold was subsisting, and not struck off by order of the court, or by the consent of the defendant.
   The Court

made the rule absolute, being satisfied of the sufficiency of the freehold, and stated the practice on the subject discussed by the counsel. It is given in the notes at the beginning of the report of this case.  