
    Bank of Mississippi v. Catlett’s Executors.
    When a, writ of fieri facias or capias ad satisfaciendwm is sued out, within the year and a day, and not executed, a new writ of execution may be taken out at any time afterwards, without a scire facias, provided the first writ he returned and filed, and continuances entered from the time of issuing it. And these continuances may he entered after the entering of the second writ.
    The continuances are presumed to he entered, and no formal entry is necessary.
    ERROR from the circuit court of Hinds county.
    On the 11th day of September, 1834, the plaintiffs obtained a judgment against the defendant in the circuit court of Hinds county, and on the 27th of the same month sued out an execution, which was returned unsatisfied. On the 29th of June, 1839, an alias fieri facias was issued, on which a part of the money was made. On the 20th of January, 1840, a third execution issued, which was levied by the sheriff upon a negro woman and her child, which was claimed by F. G. Moffett as his property in the mode pointed out by the statute. At the return term of the writ, an issue to try the right of property was regularly made up. But before it was called for trial, the defendant in the execution submitted a motion to quash the execution, which was sustained by the court on the ground that the execution had been issued for more than a year and a day. No action of the court was had on the issue.
    The error relied on was the judgment of the court on the motion to quash the execution.
    Harney for plaintiff in error insisted:
    1st. That the defendant Moffett, after joining issue to try the right of property, had no right to question the legality of the execution.
    2d. The court erred in quashing the execution, which was regular, and not at all defective on its face.
    3d. The court erred in not permitting the plaintiff to try the issue then made up in the case.
    
      4th. The court erred in not permitting the plaintiff to prove before the jury that the said slaves did belong to the estate of said Catlett, that they had never been inventoried, or legally accounted for by the executor, and that they were therefore subject to said execution. See Howard & Hutchinson, 410, the last clause of the 80th section.
    5th. The reasons for quashing said execution as adduced by said circuit court, are wholly untenable, and are not sustained by the laws of this land.
    Foote for defendant.
    The defendant was not bound to regard an issue not involved at all in the motion to quash; the claimant was not a party to the motion, nor was the appellee a party in what the appellant terms “ a process of replevin.” Why, then, confound the issue to be tried by the jury, with that before the court, on motion, and one in which the same parties do not appear ?
    The second error assigned, is, that “ the court erred in quashing the execution of the plaintiff;” and this, in fact, embraces all the questions that can arise in the case.
    It is insisted that the court quashed the execution on the ground that more than a year and a day had elapsed between the issuance of the first and second fi.fa. to wit: 27th September, 1834, until 29th June, 1839. This alone would have authorized the judgment of the court; though another sufficient ground is disclosed by the record, to wit: the fi. fa. did not issue in pursuance of any judgment, at least of the judgment alluded to in the record, in which judgment it seems that- John A. Quitman was plaintiff. The fi. fa. is in the name of the “JBank of Mississippi.”
    
    That an execution must issue in pursuance of the judgment, is a principle well established. And that one irregularly issued is a nullity. 3 John’s Rep. 523. So if it issued in the name of one not entitled to the thing recovered. 1 Roll. Abr. 889. The holder of paper not negotiable by delivery may sue in the name of the payee for his own use, in which case the holder or usee is the plaintiff in fact, and must appear as such in all process.
    The fi. fa. did not issue until more than a year and a day had elapsed, since any step had been taken in the case.
    
      Nothing is better settled than that if an execution issues after a year and a day, without a revival of the judgment by scire facias it is voidable, at the instance of the party against whom it issued.
    It is contended that because execution had once issued, the lapse of time would not render the second fi. fa. voidable. The fact that some one step has been taken after judgment does not obviate the necessity of a regular continuance nor of revival by scire facias, when no regular continuance has been made.
    
      “ If upon- a judgment there he a regular cesset executio for a year after the judgment, the plaintiff within the year after the cesset executio ends, may take out execution without a sci.fa. But if the plaintiff do not take out an execution within a year and day after the cesset executio has determined, he must first sue out a scire facias. Bacon’s Abridgement,'7th edition, page 132. It is also there declared, that “ the rule of reviving a judgment by scire facias, before execution, was intended to prevent a surprise upon the defendant.” And that where fi. fa. or writs of elegit have been sued out, and no execution thereon, continuances are to be entered to make the issuance of execution without a sci.fa. regular, several years after the issuance of the former. Bacon, same volume, 133. Bloyer v. Baldwin, Willis, 82. The same principle is clearly acknowledged in the case of Broughton v. Dawson, 1 Nott & McCord’s Rep. 404. By an act of the legislature of South Carolina, the (year and day,) time in which execution might issue without revival, was prolonged to three years. The language of the court was, that «there is no question that the plaintiff would have been out of court, and could not have proceeded to revive his execution after the expiration of a year and day, from the. return of the last preceding execution. There are some cases in which the rule has been held otherwise. But the reason of the rul e seems to have been lost sight of. It would certainly be difficult to show why the rule should apply in cases where no execution had issued upon the judgment, for a year and day, and not in those where exécution had once issued, but several years had elapsed from its return, before the second did issue: a tacit discontinuance having taken place, the only discontinuance contemplated, where no action was had after the termination of a cesset executio was certainly a passive or tacit discontinuance.
    The plea of insolvency had been made in original action, the estate so reported, and commissioners of insolvency appointed.
   Per Curiam.

The reason assigned by the judge for setting aside the execu- ' tion, is, that more than a year and a day had elapsed since the first execution was issued, which was on the 27th of September, 1834, before the alias issued on the 29th of June, 1839. The rule upon this subject appears to be well settled, and is believed to be founded in convenience and sound policy. It is this, when a writ of fieri facias -or capias ad satisfaciendum is taken out within the year and a day, and not executed, a new writ of execution may be sued out at any time afterwards without a scire facias; provided, the first writ be returned and filed and continuances entered from the time of issuing it. 2 Tidd’s pr. last ed. p. 1103. 3 Salk. 321. 2 Wils. 82. These continuances may be entered after the issuing of the second writ, ibid, and also 3 Bacon’s Ab. 409, and the authorities there cited. In practice the continuances of the order for successive executions are not now entered on the roll, but are presumed to be there entered. No formal entry is therefore required. It is different where the record shews a formal order of the court for a cesset executio, for then the presumption upon which the writ is continued in life, ceases. And this is the extent to which the authorities go, which are relied on by the defendant. The practice has been according to this rule in this state as far as we are informed, nor do we perceive any good reason to depart from it. If the defendant has any just objection to the execution of the judgment, it is quite as easy to obtain relief after the writ issues, as upon a scire facias quare executed now. For whatever would be a valid answer to the scire facias, would be equally available on an application for a supersedeas, or injunction, by an audita querila or by motion. The case in Nott & McCord, vol. 1, p. 404, cannot be permitted to influence our decision. It is opposed to the settled practice in England as well as this country. The judgment must be reversed and the case remanded.  