The opinion of the court was delivered by
Collamer, J.There is no demurrer, nor motion in arrest before us. The appeal on the demurref to a plea in bar, was, at the last term of this court, dismissed, as prematurely taken, before the trial of the general issue. All that now remains is the exception to the charge. This disposes of several points, taken by the ^defendants’ counsel, to wit, whether the proceedings, in the original case, were by the course of the common law ? Whether there were proper parties to the audita querela! Whether the only proper course would have been, to apply to the court to set aside the execution ? In short, all matters arising from the supposed insufficiency of the declaration. For when an issue is taken on a declaration, and the allegations therein are proved,the plaintiff is entitled to a verdict.
The plaintiff proved the allegations in his declaration. He was entitled to a verdict, unless the matter shown by the de-defendants amounted to a defence. This writ was prosecuted to supersede the execution of which the plaintiff was in danger, and which was irregularly issued. His danger was the same, whether it was issued by mistake or design. That could only affect the amount of damage, which was nominal in this case. When he was informed that execution was in the sheriff’s hands, his danger existed, and he then was well justified in suing out this writ. He was also well justified in giving it out for service, at any time, until he knew that danger had passed. The defendants did, indeed, show that the clerk, Mr. Swift, informed the plaintiff, that he had been informed, by the attorney/ that the execution would be taken back from the sheriff. This did not inform him that it was done. It also appears that the execution was in fact taken from the sheriff, but no notice of that Was given to the Plain*202tiff, before he gave out this writ for service, nor before it was served, though the officer did, indeed, tell him he had been informed that the execution was not to be levied, but did not tell him either that it was taken back or any orders given him to stay proceedings thereon. This, then, amounted to no defence.
Judgment affirmed.