first day of Hilary. It was moved to fet afide the teftatum capias, as not being warranted by the judgment, but it was held clearly by the whole court, (Chapple, J. abfent,) that the execution was well fued out. Deakin v. Cartwright, Hil. 12 G. 2. Andr. 308.

2. Judgment was entered 11th and 12th, revived in Eafter term. Vide ante, 13th G. 2., and defendant was taken in execution in July 1741, let. (N), pl. 4. Poft. and was then discharged by plaintiff's confent; and a written let. (U. a), agreement was entered into by the parties, that the judgment pl. 4. fhould ftand revived for 12 months. After more than a year from the laft ca. fa. plaintiff caused defendant to be taken in execution without continuance on the roll, relying upon the written agreement. The court held the agreement to be null and void, and made a rule to fet afide the ca. fa. and discharge the defendant. Thompson v. Bristow, Mich. 16 G. 2. Barnes, 205.

3. After a writ of error allowed, the plaintiff brought an action on the judgment; the writ of error was afterwards nonproffed, and the plaintiff, without difcontinuing his action, fued out and executed a teftatum fi. fa., which however was fet afide, and the goods ordered to be restored with cofts. He fhould first have difcontinued his action on the judgment. Burdus v. Satchwell, Hil. 18 G. 2. Barnes, 208.

(M. a. 2) Difcharged, fuperfeded, and set aside.

1. SUBSEQUENT to the taking of execution, but before it was executed, the plaintiff entered into an agreement in writing to forbear executing the fi. fa. if the defendant would pay him 45. per week, which fum he regularly paid or tendered to the plaintiff. The plaintiff, however, took the defendant's goods in execution; but the court difcharged the execution. Boyce v. Hall, Hil. 6 G. 2. Prat. Reg. C. P. 212.

2. It appeared that the sheriff's warrant on a fi fa. had been altered after it was fealed, and a new bailiff's name inferted in it. Per cur.-As the warrant was altered, no goods were taken in execution. Hann v. Capel, Hil. 7 G. 2. Pract. Reg. C. B. 214.

3. A writ of falfe judgment was delivered to the sheriff, but no money tendered, or paid for the return, the fheriff therefore took no notice of it, but executed a writ de executione judicii, which was held to be regular, Gale v. Hooker, Hil. 7 G. 2. Barnes, 199. The defendant, it was faid, might ftill proceed upon his writ of falle judgment.

10 Vin. 587.

4. Where judgment has been confeffed with an exprefs ceffet S. C. Cunn. executio till a certain time, and execution is taken out within that 51. time, the court may fet it afide; but where there are long collateral agreements, and the defendant alleged that by reafon of them execution ought to ftay, the court (B. R.) cannot enter into and try the equity arifing on them, but the defendant, if aggrieved, muft apply for relief in Chancery. Francis v. Nash, Trin. 7 G. 2. Rep. temp. Hardw. 53.

5. If there be a final judgment figned in account, whereas it ought only to be judgment quod computet, and execution be fued out, though the judgment be wrong, yet the execution ought not to be fet alide whilft the judgment remains. Hughes v. Burgefs, Trin. 1011 G. 2. Andr. 19.

6. The plaintiff recovered judgment in C. B., and then brought an action of debt on the fame judgment in the mayor's court of Worcester, and arrested the defendant thereon, and afterwards took out execution in C. B. The court of C. B. granted a rule to thew caufe why the plaintiff fhould not make his election. Richard v. Davis, Trin. 11 & 12 G. 2. Pract. Reg. C. B. 214. 7. An execution was made returnable on a general return, whereas it fhould have been on a day certain. And per cur.-—tado v. Mil. No advantage can be taken of it upon a writ of error, therefore ler, one. &c. let a fuperfedeas illue. Walker v. Harris one, &c. Mich. 14 G. 2. Trin. 30 St Pract. Reg. C. B. 439. 31 G. 2.

S.C. Barnes, 413.

S P. Fur

Barnes, 213.
cafe, 3 Rep.
the efloign-day

Hanbury & Ux. v. Cowper, one, &c. Mich. 29 G. 2. Barnes, 424. Vide Fulwood's An execution by fi. fa. in a fuit oy bill was fet afide because it was made returnable on of the term. Adams v. Sparry, Mich. 20 G. 2. 1 Wilf, 155.

8. Continuances were entered on the roll of a fi. fa. sued out within the year, by vice comes non mifit breves, and a ca. sa. awarded thercon; but the firft fi. fa. nor any other appearing to be returned by the fheriff, the continuances fo entered were deemed insufficient to fupport the ca. fa., and a rule was made to fet it afide, and for a fuperfedeas to difcharge the defendant. Blayer v. Baldwin, Trin. 31 G. 2. Barnes, 213.

9. Pending a writ of error the plaintiff in the original action brought an action of debt on the judgment, and obtained a second judgment by default, and fued out execution thereupon; and the theriff being actually in poffeffion, the court were applied to, to fet afide the latter judgment and proceedings, which however they refufed to do, but only directed the proceedings to be ftayed. Tafwell v. Stone, Trin. 9 G. 3. Barr. 2454.

10. Trefpafs against two defendants who fevered in pleading, and one of them figned judgment of nonpros aud fued out execution. The execution was a ca. fa. in trefpafs on the cafe, inftead of trefpafs. On a motion to fet afide the judgment for irregularity, Buller, J. faid, that as to the judgment, it being of a former term, it could not be fet afide upon motion, but must be reverfed by wiit of error; but as to the execution the court ought to interfere, because it could not be got at by writ of error, and the party had no other remedy. The execution was fet afide; the plaintiff undertaking not to bring an action. Philpot v. Muller, Trin. 23 G. 3. Doug. 169. n. († 56.)

11. If a writ of error be fued out, and the plaintiff will not fign judgment till after the return of the writ, in order to avoid the effect of it, and then fues out execution, the court will fet the execution afide. Per Buller, J. in Jaques v. Nixon, Trin. 26 G. 31 Term Rep. B. R. 280.

(M. a. 3) By extendi facias et liberate. What and 10Vin. 589. how. And of what it may be.

S.

C. 2 P. Wms 91. Str. 461.

1.AN extent on a ftatute staple was firft taken out into the county of Stafford, and a liberate was returned and filed, and after that another extent was taken into the county of Nottingham, and a liberate returned and filed; this appeared at a trial, and a cafe was made. Per tot. cur. it was held, that if the party makes his prayer into feveral counties, he may have his execution into all thofe counties; but here was no prayer, fo the court gave leave to apply to the court of Chancery to enter a prayer in the petty bag, and leave was given, and a prayer was entered in form (a) into all the counties of England, which was enough to warrant (a) Nnne the extent into these counties. And the caufe going down to be protunc. tried again, the plaintiff had judgment. Oats v. Robinfɔn, Mich. 8 G. 1. Fortefc. 373.

2. An extent is a known term; it may iffue at the fuit of the crown or of a fubject upon a statute-merchant; but it has a different effect from a fi. fa., for on a fi. fa. the theriff cannot deliver the goods, but muft fell them. Per Lord Hardwicke in Moore v. Anderfon, Eaft. 8 G. 2. Rep. temp. Hardw. 103.

(M. a. 4) By Elegit. In what Cafes. And how (a). 10Vin. 590.

(a) Vide let. (D. b).

per force d'un elegit ferra fat del moyety per

IT Tis agreed, that the moiety of lands extended under an elegit L'execution must be fet out by metes and bounds; of which Buller, J. faid he took the meaning to be a moiety in value, which is afcertained by the jury. Vide Den ex dem. Taylor v. the Earl of Abingdon, Mich. 21 G. 3. Dougl. 473.476.

metes et

boundas &

nemi per mie et per tout. Dalt. 135. cites 31 AT. but Mr. Douglas fays, he can find no fuch paffage in the Book of Affize. There was no decifion in the cafe in 1 Vent. 259. which is referred to by Gilbert (Ev. 54.), the court differing in opinion; and the only question was, Whether the return could be quafhed upon motion, it not appearing that poffemon had been delivered by metes and bounds? Vide Doug. 476. (n. 1.)

(M. a. 6) Where there are feveral Judgments, which 10Vin. 595. of them fhall have the Precedency.

T

HERE were two judgments, and the question was, Whether the court would fay that one had the precedence of the other? but they both referred to the fame day, therefore the court held that the priority of one could not be averred. Lord Porchester's cafe, Trin. 23 G. 3. cited 1 Term Rep. B. R. 117.

Scire Facias. On what Judgment it lies.

11Vin. 7. (N. a. 2) Scire Facias.

Similar rule for an executor in the

cafe of a

ON

Na judgment of above 20 years old, the court (according to a precedent) gave leave to the adminiftrator cum teftamento annexo of the plaintiff to fue out a fci. fa. to revive. But that no judgment of execution fhould be taken out thereon until either the sheriff fhould make an actual return of feire feci, or an affidavit fhould be made and filed of perfonal notice being ferved on the defendant of iffuing fuch feire facias. Coyfgarne v. Fly, Eaft. 15 G. 3. Blackft. 995. Blackft. 1140. faid to be on the authority of a precedent between Yarker and Reynoldson, East. 6 G. 3.

ten years standing.

Bagnall v.

Gray, Eaft.

17 G. 3.

11Vin. 8. (O. a) In what Cafes there ought to be a Scire Facias.

S. C. Barnes, I.
197.
It was faid

by the court,
that there

(After the Year.)

THE plaintiff took out execution on a judgment of above a year's ftanding, without reviving it by a fci. fa., and it was infifted for the plaintiff that he had been hindered from taking out execution by an injunction out of Chancery. The court discharged the execution, becaufe the judgment was not revived by fci.fa., and faid, that the plaintiff might have revived his judgment by fci. cafe of a writ fa. without breach of the injunction. Simpson v. Grey & Ux. Hil. of error and 6 G. 2. Pract. Reg. C. B. 377.

was a great

difference

between the

an injunc

tion, the former being a judicial proceeding appearing to them upon record, whereas an injunction is not a matter of record fo as that the court can take notice of it. Winter v. Lightbound, Eaft 6 G. 1. Str. 301. But in a later cafe, where it appeared that the delay of taking out execution arose from the defendants, by bills in Chancery for injunctions, and by obtaining time for payment, the court were unanimous that this rule of reviving a judgment of above a year old by a fei. fa. before fuing out execution upon it, which was intended to prevent a furprife upon the defendant, ought not to be taken advantage of by defendant, who was fo far from being furprited by the plaintiff's delay, that he was the caufe of it; and therefore they refused to fet afide an execution taken out after a year without a fi. fa. Michell v. Cue & Ux. Mich. 32 G. 2. Eurr. 660. Vide Bofworth v. Philips, Blackft. 784. Hayley v. Riley, Doug. 71.

S. P. Winter v. Lightbound, Eaft. 6 G. 1.

Str. 301.

2. The year is to be computed from the day of figning the judg ment, not by the terms. Simpfon v. Gray & Ux., Hil. 6 G. 2. Barnes, 197.

3. Defendant obtained a fuperfedeas for want of a declaration in an action of debt on judgment, and was afterwards taken in execution by a ca. fa. iffued after a year and a day from the time of the judgment, without any fci. fa. to revive. The defendant obtained a rule to fet afide the ca. fa., there being nothing to warrant the continuance of a ca. fa. on the roll. Martin v. Ridge, Trin. 16 & 17 G. 2. Barnes, 206.

(P. a) In what Cafes without Scire Facias (a).

I.

A

11 Vin. 9.

(a) Vide letter (P), pl. 2.

Fi. fa. was taken out within a year, and nulla bona returned; this is continued down for feveral years, and then a ca. fa iffued; which was held to be regular without a fci. fa. Aires V. Hardrefs, Trin. 4 G. 1. Str. 100.

Rule to fhew

caufe why not be fet fi fa. should

afide, the judg ment

being above a year old, and not revived by fci. fa. nor any continuances of fi. fa, entered on record. The plaintiff, before caufe fhewn, entered the continuances and produced intervening writs of fi. fa. to warrant the fame, the rule was difcharged fans coits. Low v. Beart, East 20 6. 2. Barnes, 210. -Fi. fa. or ça. fa. cannot be continued without fuing our the writ, Barnes, 270. An elesit may, 16. -Within a year after final judgment afi. fa. was fued out in Eafter term 1757, and returnable on the morrow of the Afcenfion in that term, and was continued upon the roll down till Trinity 173, by wice-comes non mifit breve, and the defendant being then taken upon a ca. fa. it was moved to difcharge him, there being neither a fci. fa. nor any execution re uned by the sheriff. And per cur. The defendant must be difcharged out of custody; for it is irregular to continue an execution on the roll which was never returned or filed. Blayer v. Baldwin, Trin. 31 G. 2. 2 Wilf. 82. S. C. Barnes, 213.

2. The plaintiff levied part of his judgment within the year, and after the year was expired revived by fei. fa., and took the defendant in execution. The court held that it was unneceffary to fue out the fci. fa., fince the plaintiff might have continued the execution on the roll, but it was not irregular to fue out the fei. fa. Marfergh v. Harlin, Hil. 5 G. 2. Pract. Reg. C. B. 209.

(P. a. 2) Where a Sci. Fa. muft be, or a new Action. Vin. 17.

IN

N December 1794 the defendant gave to B. a warrant of attorney to confefs a judgment for 15927., upon which judgment was immediately entered up, but no execution was fued out. The defendant died in Eafler term on the 5th May. On the 19th May in the vacation between Eafter and Trinity terms, the plaintiff (H.) figned judgment on a warrant of attorney given by the defendant in his lifetime, upon which execution was taken out. The latter judgment was not docketed until the 9th of June. Upon a motion to fet afide the judgment and execution, Lord Kenyon, C J. faid, that in general when a judgment is entered up in the vacation on a warrant of attorney, and the defendant was alive within the preceding term, it is a valid judgment, though the defendant be not alive on the day when the judgment is actually entered up, because it relates to the first day of the antecedent term; therefore there is no objection to this judgment. But the execution is irregular; the plaintiff thould have fued out a fci. fa. to revive the judgment against the defendant's executors (a). The moment a party is dead, the rights of his creditors are fixed; great injuftice may be done to creditors if the judgment be permitted to ftand. Heapy v. Paris, Trin. 35 G. 3. 6 Term Rep. B. R. 368.

(4) Vide

of Wine

Finch v. the

chelfea, 3 P. Wms. 400.

n. (E)..