
    J. F. Jenkins vs. Wm. Mayrant, Sen.
    No subsequent execution can issue, until the proceeding one be regularly returned. And where a Ji. fa. and ca, ¿a .‘are taken out together, both must be returned before another can issue.
    To ascertain whether an execution has been issued in proper time or not, reference must be made to the actual time of sicing out the writ, and not to its test.
    
    This was a rule on Stephen D. Miller Esq. to shew cause why an execution should not be set aside for irregularity, in having been issued after a year and day. Mr Miller returned the following facts: “ The judgment was obtained in October, 1822, and signed 14th November, J822. The second ji. fa. was issued, and dated, March, 1824, returnable to October, 1824, signed but not lodged. The third execution, was tested October, 1825, signed by the clerk, 17th February 1826, and lodged 18th February, 1826; and the question was, whether the test of the third Ji. fa. or the date of signing the same should be regarded, so far as to authorize the renewal in question^ The act of 1815, says, it áhall, and may be lawful to issue éxecution on any judgment or decree of the court of law or equity, in this state, at any time within three years next, after signing orinrolment thereof, without any renewal of the same.
    His honour, judge Gaillard, ordered the execution to be set aside, and from this order the plaintiff appealed.
    . - iller for the motion.
    At common law the test is to be regarded as the commencement of the writ, and not the signing of the writ. (Sellon 526. J And the continuances are still regarded as of the original test. Cited to this point, Sellon 526 Strange 301. Where a person dies in vacation, a Ji. )a- may still be taken out as of the preceding (lb. 515. Ld. Raymond 849,) term, the judgment being had then.
    
      Win .'¡ay* ant.
    
    Even if the test of the third'execution be regarded asthe beginning of th eji.fa. it was not within time. It must have commenced where the former left off. (Gibbs vs. Mitchell, 2 Bay 120.) In this case several days intervened, The issuing of the writ must be the actual time of taking out execution, and not the test. It is the language of the act. Cited Primrose, and Becket, Ante, 418, in which case the time of issuing must have been regarded and not the test.
    
      .Miller.
    
    That case stands clear of the common law principle upon which 1 have endeavoured to put this case. I contend, without the act of 1815, that by the principles of common law we are in time. It is a mere fiction of the common law that the execution is satisfied within the year and a day. The few days the gentleman talks of as having intervened, between the return and sitting of the court, do not intervene. The execution must be considered as running from court to court, and the days between r-turn day and the court, when executions may be renewed, are legally considered as but one day, for the purpose of allowing the party to renew his execution and to receive what may have been collecied on it.
   Colcock, J.

This cannot be distinguished from the case of Primrose, vs. Becket and Wilkins, decided at our last sitting. The judgment was signed on the 14th Nov. 3822, and the last execution was lodged on the 18th Feb’ry, 1826; which was more than three years, and consequently not within the provision oftheactof 1816. But it is contended that the last execution was a continuation of the preceeding execution. This cannot be, for that was never returned, and no subsequent execution can issue until the preceeding one be regularly returned, except where a ji.fa. and ca. sa. are taken out together, and then both must be returned before another can issue. In the course of the argument, it seemed to be insinuated that the test was to be considered as the time of issuing the execution. But if it was so intended, it is certainly a mistake. There is an obvious difference between the test and the suing out of the writ as it is expressed. In 1 Sellon’s Practice, page 514, it is said, execution ought to be sued out within a year and a day after the judgment, be from the time of the the year to be reckoned by calender months, and not by the terms. (Strange 301.) And in page 520 of Sellon it is said, ifa capias satisfaciendum, or fieri facias be issued out of term, let the test be the last day of the term; if issued in term, test the writ the first day of the term, although the judgmentisnot signed until four days after. And in page 515, it is obsevered that the execution need not be actually executed within the year and day; for if the ji. ja. ca. sa. or elegit be but sued out and returned within the year, continuances may be entered on the roll, from term to term, to the time of the execution, which may be at any time after the year, and as good as if judgment bad been revived by jieri facias. The writ in such case must be returned, and filed, for the mere suing it out and continuing it on the roll, will not be sufiicient. One sort of writ sued out and returned will support the awarding of a different kind of writ afterwards. Thus a ca. sa. may issue after the year upon a ji. fa. having been properly-sued out, returned and continued. (2 Bacon 730, Tit. Exon.)

In this case it is not even certain that the second execution was a proper continuation of the first; for it is not stated when it issued, though it is presumable that it was.. At all events, the third is not supported by the second. The-execution is not, therefore, within the rules of the commoa. law, nor the provisions of the statute, and was therefore properly set aside-

The motion is dismissed.

Miller for the motion,

William Jtiayrant, contra.  