
    Joshua Sawyer v. Joseph Doane.
    An execution issued by a justice of the peace, which is renewed by erasing the date and inserting anew date, after it has been delivered to an officer for collection, but before service has been made, and within its life, is not thereby rendered absolutely void, so that it may be set aside on audita querela.
    
    
      . Audita Querela, brought to set aside an execution against the plaintiff. Plea, the general issue, and trial by jury, June Term, 1845, — Royce, J., presiding.
    On trial it appeared that the execution in question was originally issued with the date of August 27, 1842, and that, when it had nearly expired, and after it had been delivered to an officer for collection, but before any service had been made, the justice, who signed it, altered its date, at the request of the creditor, to September 27, 1842, and that it was then served by arresting the body of the plaintiff.
    The county court rendered judgment for the defendants. Exceptions by plaintiff.
    
      L. P. Poland and J. Sawyer for plaintiff.
    
      Wires and White for defendant.
   By the Court.

It is impossible to admit, that an execution issued by a justice of the peace, and which is revived, (or renewed, as it is usually denominated in this state,) by carrying the date forwarders, therefore absolutely void, so that it may be set aside by audita querela. The practice may not be the most judicious, perhaps,— certainly not the most clerk-like; but we see no good reason, whatever, to consider such an execution void.

Note by Redfield, J. The court esteemed the above ease as worthy of being reported, as matter of practice, in order to discourage what was, at one time, very common in this state, — so much so, as to have acquired a technical name almost, — that of “ renewing ” executions by carrying the date forward. This is a practice, which it is presumed is coeval with the existence of the State, and which was,very probably, brought here from Connecticut, — from whence we derive much of our lex mn ¡cripta, or local common law. The practice is still sanctioned there,as we infer from the case of Roberts v. Church, 17 Conn.142,--where the court held, that the renewed execution is to all intents the same execution it was before its renewal, and not an alias, in any such sense as to require the officer levying the same to begin de novo. This does seem to us carrying the matter farther, than is entirely consistent. But the decision there made is no doubt justifiable upon other less objectionable grounds, — that is, that no demand upon the debtor is necessary to the validity of the levy of an execution upon real estate. This is the settled law of this and some other of the Ameiican States, — thus treating the statute as directory to the officer, and making him liable, in an action upon the case, for omitting the demand, but regarding the levy as valid.  