
    Erastus Allen vs. Charles Carpenter.
    Orange,
    
      March, 1835.
    Where the dobtor in execution has been committed to jail, and released an taking the poor man’s oath, an alias execution against the goods of said debtor cannot issueson the samo judgment, without scire facias, after more than eight years after said release.
    This was an application to the county court to supersede an execution as impropely and .irregularly issued from that court. At December Term, 1824, Carpenter recovered a judgment against Allen, on which execution issued, and Allen was committed to jail, and on the 10th day of March, 1825, was admitted to the poor debtor’s oath, and released from confinement. Nothing further was d.one until the 25th day of August, 1834, when said Carpenter prayed out execution of that date against the goods, chattels and estate' of Allen, and levied the same ; — to supersede which, as irregularly issued, this application was made. Carpenter having been duly notified of the application, appeared, and the county court did order said execution superseded. To this decision, Carpenter filed exception, and thereupon the cause passed to this court for revision.
    
      Uphamfor defendant.
    
    — In the court below, the plaintiff, Allen/ applied to have an execution set aside upon the ground that it hat? irregularly issued against him. This application was sustained, and the execution was set aside. The defendant, Carpenter, took his bill of exceptions to the opinion and decision of the court, in setting aside the execution. And two questions-are now presented for the consideration of the court: 1st, Was the case a proper one for a bill of exceptions ? And 2d, Did the execution irregularly issue ?
    1. We admit that the repeal of the court below, to allow a plea to be amended', or a new plea to be filed, or to grant a new trial,- or to continue a cause, cannot be assigned as a cause of reversal or a writ of error. Indeed,- many incidental orders are made in the progress of a cause, before trial, upon which error cannot berassigned. But when a decision is made upon the trial which disposes of the whole case, we insist, a writ of error will lie.
    The books say a bill of exceptions ought to be upon some point of law, either in admitting or denying of evidence, or a challenge,’ or some matter of law arising upon facts not denied, in which either party is overruled by the court. — Bull N. P. 316. 1 Swift's-Dig. 771.
    In the case at bar, a question of law arose in the county court upon facts not denied by the defendant, a'nd he was overruled,|and his execution set aside. Had he not a right then to tender his bill-of exceptions, and pass his cause to this court for revision ? We think he had.
    Again, the act of 1826 declares that all questions of law decided by any county court, and placed upon the record, by the agreement of parties, on the allowance and order of such county court, may pass to the supreme court for their decision, the same as questions-of law that arise on jury trials. — Vide Acts of 1826, p. 3.
    2. As to the issuing of the execution. We maintain that the' execution was regularly issued, and ought not to have been set-aside in the court below.
    A debtor in jail does not pay his debt by taking what is called the poor debtor’s oath, and thereby procuring his discharge from further imprisonment. The 13th section of the act of 1797, relating to jails and jailers, declares that all and every judgment obtained against any such prisoner, (that is, any prisoner who has been discharged on taking the poor debtor’s oath,) shall, notwithstanding such- discharge, be' and remain good and effectual in law, to all intents and purposes, against any estate whatever, whicli may then, or at any time thereafter, belong to any such prisoner ; and a new execution may issue, at any time, against the goods,chattels or lands of such prisoner, in the same manner as might-have been done, if the prisoner had never been in execution. — - Statute, 222.
    
      By the express provisions of this section, Carpenter, the creditor in the execution, had a right, at any time, to take an execution ¿gainst the goods and chattels of Allen, the debtor. If he could take it after a year and a day without scire facias, he could take it at any subsequent period of time, when he could find property to satisfy it.
    This section does not require a scire facias to enable the creditor to obtain his execution: he may take it at any time, by applying to the clerk of the court in the county where the judgment was rendered,
    In some instances, the' statute directs a scire facias in order to obtain an alias execution. Where an execution has been levied on property not belonging to the judgment debtor, a scire facias is necessary. — Stat. 213.
    By the 5th section of the act of 1823, after á poor debtor has been discharged from jail by the commissioners, the creditor is authorized, at any time, to take an alias execution against his good» and chattels, &c. — Stat. 241.
    So where a debtor has been committed to jail, and-remains there for years, the creditor in the execution may discharge him, and take an alias execution against his goods and chattels, &c. — Stat. 228,-sec. 3.
    We do not think the court are at liberty to treat the words “ at any time,” introduced into the two sections of the acts to which we have referred, as senseless and unmeaning. We believe the legislature used the words for the express purpose of giving the judgment creditor a right to take an alias execution, without the cost of a scire facias, at any time, when he could find property to satis-* fy it.
    
      Peck for plaintiff.
    1. This application was addressed to the' discretion of the court below, and their decision cannot be received by this court. It is like the application to an inferior'court for a new trial, the granting or refusal of which cannot be assigned as er-' for. — 6 Cranch, 206.-5 id. 11, 187. 4 Wheat. 213. — 7 id¿ 248. — 9 id. 576. — 11 id. 280. 1 Peters',■ Rep. 165. 6-Eastv 333,
    2. The' execution was properly set aside, it having- issued more' than a year and a day after judgment. — 3 Bl. Com. 421.'- 2 Wills/ 82. Co. Lift. 290. 1 Saund. 6 n. 1, 3 Caen’s Rep. 267, & John. Rep. 523.-8 id. 365.-6 id. 106. — 13 id. 450. — 16 id.in. 1 Cowan, 711. — 8 id. 192. 1 Aik. Rep. 339.
    
      Bat the plaintifF insists that his execution is warranted by the act of 1797, sec. 13, (Comp. Stat. p. 222) and that that statute has altered the common law in this particular, inasmuch as it provides that exébution may be taken out at any time. When the whole section is taken together, it will be found that it does not bear out the plaintiff in his position. The first part of the section provides that the judgment shall be good and effectual against the property of those who may be discharged according to the provisions of the áct; and then it provides that “ a new execution may issue, at any time, against the goods, chattels, or lands of such prisoner, in the same way and manner as might have been done, if the prisoner had never been in execution.” How then would the creditor have obtained an alias execution, bad the debtor not been arrested? It is most manifest that it would have been legally abated by applying to the clerk of the court rendering the judgment, at any time within a year and a day after the return day of the original execution; but if more than that time had elapsed, he must have revived the judgment by a scire facias. The last mode designated is, then, according to the very terms of our statute relating to the discharge of poor debtors, much like the insolvent act of the I2th Geo. III. c. 23, the 34th section of which declares, “that the future effects of insolvents, (except clothes and tools, of the value of £20,) are to be liable as before the act; and that any creditor may at any time hereafter sue out execution on any judgment at the time of the act recovered, but not against his person,” &c.— But no special execution can be taken out on this section, without first suing out a scire facias. — (Buxton et al. vs. Mardin, 1 T. ' R. 80.) Yet the wording of this section furnishes a stronger argument in support of the position taken by the creditor, than that of the 13th sec. of the act of 1797, as it does not point out the way and manner in which the special execution shall be obtained.
    3. But, at all events, an execution cannot be taken out after the expiration of eight years from the rendition of judgment. By the discharge of the debtor, in the present case, the judgment was not extinguished, but an action of debt or scire facias might have been brought upon it,, and his property attached&wkey;3 Mass. R. 193. This remedy, however, must have been pursued within eight years after the rendition of the judgment, and at the time the execution was taken out, the remedy, by a suit upon the judgment, was bar-rod by the statute of limitations; and by ajjalogy, the right to an execution was barred.
    
      The remedy upon the judgment being gone, the right to execution would seem to fall with it. Thus by a release of all debts or duties, the debtor is discharged of an execution, because the debt or duty on which it is founded is discharged. — Co. Lit. 291.
    If an execution, in a case like the one before the court, can be taken out on a judgment of ten years standing, it may on a judgment twenty years old. This certainly is giving a construction to the statute, that was never contemplated by the legislature. By the common law, the discharge of a debtor from imprisonment on execution, would be a discharge of the debt; and to provide against this effect, the 13th section was passed ; the legislature intended thereby to give the creditor the same right against the debtor’s property to coerce payment of the debt, that would have existed had he not been discharged. The legislature could never have intended to give the creditor any other or greater right.
   The opinion of the court was delivered by

Collamer, J.

By the statute relating to jails and jailers, and for the relief persons imprisoned therein, provision is made that poor prisoners may take the oath therein prescribed, and thereupon be discharged. In the 13th section, (Stat. p. 222,) it is provided, e< That all and every judgment obtained against any such prisoner, shall, notwithstanding such discharge, be and remain good and effectual in law, to all intents and purposes, against any estate whatever, which may then or at any time afterwards belong unto any such prisoner; and a new execution may issue, at any time, against the goods, chattels or lands of such prisoner, in the same way and manner as might have been done, if the prisoner never had been in execution.”

We are now called on to decide that the words “at any time” are to be taken by themselves, without limitation or qualification, and enable the creditor not only to take execution after a commitment, but after the year and a day, and even exempts such judgment from the statute of limitations, and by consequence from all presumptions arising from lapse of time. This would give to these words an effect which, even if the sentence contained no qualifying words, the court would be slow to believe was intended by this statute. The object of this expression is, however, quite obvious. It was considered that when a debtor had been in execution or imprisoned, it operated a discharge of the judgment. To prevent this effect, in case of the discharge of the body, by the poor debtor’s oath, this section was enacted. Hence ihp concluding expression, as if the prisoner had not teen in execution. It puts the judgment on the same ground as any other unsatisfied judgment, except as to process against the body. The statute in words provides that the new execution against the goods, &c. is to issue at any time in the same way and manner as might have been done had not the prisoner ever been in execution. Now in what way and manner must an alias execution issue ? By the common law, if a judgment lay dormant more than a year and a day, it was pre- - sumed to be satisfied. If the judgment was for a debt, the action of debt on the judgment was necessary. If the judgment was for land where debt could not be sustained, a scire facias was brought. In both cases the declaration alleged the judgment to be unrevers-ed and unsatisfied, and the defendant must come in and show his apcpuing defence, if any he has. By statute, (West. 2) scire facias was given in personal actions, for conformity. This being a statute not creating a right, but merely regulating the form of remedy, has been adopted by the usages of our courts. In ordinary cases, after a year and a day, no execution can issue on a dormant judgment, on account of the presumption. While a debtor remains in prison, perhaps no presumption can arise, but he may as well be presumed to have paid the judgment after his release from imprisonment, as any-other debtor. There can be no reason why scire facias should not be brought to allow him the opportunity to show payment, accord, tender, limitation, or any other accruing defence as much as to any other debtor. Such is the way and manner in which alias executions are to issue, when a debtor has not been in execution, and therefore by the express words of this Statute such is the way and manner in which this should have issued. It therefore irregularly issued, and though issuing from a court of competent jurisdiction, it was not void — it was properly superseded by the county JBDUrt,

Judgment affirmeds  