Cowgill v. Mason — 9 Del. 320

Majority

p. 320

William Cowgill v. John S. Mason.

Headnote

An alias fi. fa cannot issue on a judgment before a justice of the peace three years or more after the rendition of it, notwithstanding a fi. fa. has been issued on it within the three years and levied on the goods of the defendant and also a venditioni exponas has been issued thereon after the three years, and returned “ goods sold and proceeds applied to other claims,” unless such alias fi,. fa. is issued on the same day such venditioni exponas is returned.

Certiorari. The judgment in the case was entered on the 11th day of May 1860, on which a ji. fa. was issued returnable, and returned on the 2d day of October following “ levied on the goods of the defendant,” and upon which a venditioni exponas was issued on the 27th day of June 1871, returnable and returned on • the 3d day of October following, with the indorsement upon

p. 321

it, “ returned by order of the plaintiff’s attorney,” and on the following day an alias venditioni exponas was thereupon issued and returned on the 14th day of that month? “ goods sold by Sheriff of Kent County and proceeds applied to other claims.” On the 16th day of that month, two days after the return of the alias venditioni ex- ponas, an alias fi. fa. was issued on the judgment.

The exception to it was that the alias fi. fa. so issued was irregular, illegal and void, because it was not a regular continuance of the previous process on the judgment, as more than three years had then elapsed since the rendition of it.

An execution may issue on a judgment before a justice of the peace at any time within three years after the rendition of it without a scire facias, and an alias fi. fa. may issue in like manner within that time; and if execution is begun within the three years, and is extended beyond that period, it may be followed up by alias execution, provided it is issued on the same day the. preceding execution is returned. The rule of law in relation to execution, is that in all continued writs, the alias process must be tested the day on which the preceding writ was returnable; but as justices of the peace have no stated terms of court, and there can be with them no fiction of continuances on the roll, it follows that the alias process must be issued by such an officer on the day of the return of the next preceding writ of execution in the case, or it cannot be issued at all, and the plaintiff will necessarily be put to his scire facias on the judgment. Messick v. Russell, 3 Harr. 13 . But in this case the alias fi. fa. was not issued until two days after the alias venditioni exponas which preceded it, had been returned. It must, therefore, be set áside.

Comegys, for the plaintiff in the certiorari.

Beed, for the defendant in the certiorari.