
    HUBBARD vs. HITES.
    Oct. 6.
    Where a writ of error is brought on a judgment overruling a motion to quash an execution, as variant from the decree, the decree itself must be a part of the record.
    Showing that there is no decree which would justify the execution, will not be sufficient.
    Even showing that the plaintiff in the motion, against whom the execution issued, was not a party in the suit, will not to be sufficient, as that would be merely showing that the decree, if such an one existed, was erroneous; not showing that such an one did not exist in fact.
    
      
      From the Jefferson Circuit Court.
   Opinion of the Court, by

Ch. J. Boyle.

THIS is a writ of error to a judgment overruling a motion to quash an execution for costs and a fine, upon the discontinuance of a suit in chancery.

The first objection taken to the execution is, that it improperly issued against the plaintiff in error, who was not a party to the suit. It appears that the suit was brought in the name of Evangelist Hardin, but with an endorsement that it was for the benefit of the plaintiff in error, and that he was to pay the fees. Whether this endorsement was sufficient to authorise the court to decree the plaintiff in error to pay the costs upon the discontinuance of the suit, is a point we need not decide; for whether it is or not, if there be no decree that he shall pay the costs, it is evident that no execution could issue against him; and if there be such a decree, whether it is correct or not, it is equally clear that an execution may correctly issue in conformity to it. But what the decree of the court in this respect may be, we are unable to say, inasmuch as the bill of exceptions has not exhibited it, or stated in substance what it contains. We cannot, therefore, on this ground, decide that the execution is vicious and ought to be quashed.

Another objection to the execution is, that it issued for a fine of tobacco; whereas no such fine is by law imposed for the discontinuance of a suit in chancery. As the decree is not made a part of the bill of exceptions, we cannot say in this respect, no more than we could in relation to the first objection, that the execution has not conformed to the decree. The same answer may be given to the third and last objection to the execution; namely, that it issued for a plurality of lawyers' fees; for the decree may, in this instance, as is sometimes done, have directed the number of lawyers’ fees that should be taxed in the costs. But if the decree be silent in this respect, still, as the error, if it be one, in that case would be merely a clerical one, it is amendable, and is therefore no ground for quashing the execution.

The judgment must be affirmed with costs.  