#### James Taylor, Plaintiff in Error, v. J. D. Winters, Defendant in Error.

ERROR TO JACKSON.

A party can not, on motion, qnash Ms own execution if it be regular.

An execution indorsed that “ state paper ” would be received in discharge of it, can not on motion of the plaintiff, be quashed so as to enable Mm to take out another execution without such indorsement.

Opinion of the Court by

Justice Lockwood.

The error assigned in this case is, that the court below had no right to quash'an execution on the motion of the plaintiff, and at his expense, when the execution appears regular on its face.

In answer to this error, it was suggested by counsel for defendant in error that the plaintiff in error had sustained no injury. The execution had been issued, and the plaintiff had indorsed that he would receive state paper in discharge of it. On this execution the defendant caused the debt to be replevied for sixty days. It is presumed that the object to be effected by quashing the execution must have been to enable the plaintiff below to take out another execution without such indorsement. If such was the object, there was clearly an injury to the defendant. Whether a party on sueing out a second execution, is bound to make a similar indorsement, is not necessarily before this court; the court are, however, inclined to think he would be, unless special reasons were shown why he should not.

It is fairly to be presumed that when this indorsement is made, and the sixty days replevin is taken, that the defendant obtains this time to enable him to raise the state paper. And if the plaintiff in the execution has it in his power subsequently, to refuse to take the paper without showing any cause, he may occasion a serious loss to the defendant. In 4 Bibb, 471, and 1 Bibb, 147 these questions were considered, and there decided, that a party can not qühsli his own execution if it be regular. The judgment quashing the execution must be reversed with costs.

Judgment reversed.