Cowgill v. Mason

9 Del. 320

• Court: Superior Court of Delaware
• Decided: July 5, 1872
• Status: Published

Opinion

By the Court,

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.