
    Berry, use Burgess’s Adm’r. vs. Nicholls.
    A judgment having been obtained 1>y B aerainst E, and C his suretj, 51 fa' is,sued thereon ajjaimt 33, who survived C, tfuid was laid 'on 33’<» lands. The administrator of C paid the amount of the judgment to B, who directed the judgment to lie entered for the wse of the a<lini? nistvator of C A •venditioni expo-7itt$, issued for the »we of the administrator of C, for a sale of the lands, %vas returned unsold) and whs, on monon of the defendant* gyashed.
    
    Venditioni Exponas. A judgment was rendered in the late general court at May term 1791, in favour of Z. Berry against E, Nicholls and C. Burgess, on which writs of execution regularly issued, Iput were not executed, until the 14th of July 1806, when a writ of fieri facias was issued, returnable to this court, against Nicholls as survivor of Burgess, whose death was suggested, and was retqrned by the sheriff, “laid as pr. schedule, not sold, &c.” The schedule described the property as follow’: viz., “one house and lot in the town of Upper Marlborough, in the possession of John Hodges of Thomas', and one house and -lot in the town of Upper Marlborough, occupied by Philip T. Baker, Esquire,” The plaintiff gave directions in writing to the clerk of this court, dated the 19th of August 18Q9, to have the judgment he had obtained against E. Nicholls, and C. Burgess as securily, entered for the use of Dennis M. Burgess, adm’r. of C. Burgess, the money having been paid to him by said Burgess. On the 10th of November 1809, the present writ of venditioni exponas issued for a sale of the above property, and ivas endorsed for the use of Dennis M. Burgess administrator of Charles Burgess, and ivas returned by the sheriff, that the property remained unsold. &c.
    
      Motion on the part of the defendant to quash the writ oí venditioni exponas, for the following reasons: 1. Be. pausg, in the description of the property taken under the fieri facias, there was not such certainty as the law requires. 2. Because the judgment, whereon the execution issued, was obtained against the defendant and CL Burgess, and by the endorsement on the execution, and the note of the plaintiff to th.e clerk, filed in court, it appeared, that before issuing the fieri facias the judgment' jvas salisfedf and. the execution" was issued for the use of fne administrator of one of the original defendants against the other.
    The motion was argued before Chase, Ch. J. Nichoi.» sox, Gantt, and Earle, J. by
    Mcgrvder, for the motion;
    and by
    
      Clageit, contra.
   The Court

sustained the motion, and

VENDITIONI EXPONAS QUASHED,  