Walker v. Hukill , 1 Del. 347 ( 1834 )

RULE to show cause why the sale of deft's. lands should not be set aside.

The objection was to the regularity of the proceedings. A fi. fa. had issued and was returned levied on goods per inventory, and also on lands: Inquiry held and not sufficient. A venditioni exponas then issued for the sale of the goods, and afterwards an alias venditioni exponas, upon which these lands were sold.

It was stated that such had been the practice in New-Castle county; but the court said it was different in the other counties, and ought to be different. The land should not be inquired on whilst the goods were unsold. The proceeds of the sales of goods might save the land from condemnation. Nor can any inconvenience arise from requiring the goods to be sold before an inquisition is held on the land, for the party can obtain his rule inquisition in vacation to be executed in thirty days, (Dig. 210,) and the interval between terms is generally about five months. The practice in this county is dangerous and illegal.

It appearing also that this was the first term in which the deft. had an opportunity of objecting to the inquiry, the rule was made absolute. And the plff. then asked that the inquisition should also be set aside, which was granted.