
    
      J. J. Vandiver vs. E. Hammet.
    
    An action will not lie on a judgment, so long as it can be enforced by execution.
    An action on a magistrate’s judgment is not barred by the statute of limitations until four years after an action may be commenced thereon: — to an action, therefore, on such a judgment, rendered before the Act of 1817, and enforceable by execution within a year and a day, held that the statute was no bar — the action having been commenced more than four years from the date of the judgment, but within four years from the expiration of the year and day.
    
      Before Withers, J., at Spartanburg, Fall Term, 1850.
    Summons, issued 3d December, 1849, on a magistrate’s judgment, dated 28th July, 1845. Plea, the statute of limitations. Decree for defendant, which, on appeal, was sustained by his Honor, the Circuit Judge.
    The appeal was now brought before this Court.
    Bobo, for the appellant.
   Curia, per

Evans, J.

In Griffin vs. Heaton, (2 Bail. 58,) it was decided that a magistrate’s judgment was not a record, and an action on it was barred by the statute of limitations in four years, but nothing is said as to the time when the statute begins to run. In Lee vs. Giles, (1 Bail. 449,) it was held that execution may issue on a magistrate’s judgment at any time within a year and day, and no action on it can be brought within that time. The principle of this case is, that no action will lie on a judgment which can then be enforced, for the plaintiff already has an enforceable execution, and that is all he would get by his new action. It follows, from this, that the plaintiff had no right of action until after the expiration of the year and day— and the statute does not commence to run until an action lies. The year and day from the date of the judgment did not expire until July, 1846, and this action was brought in December, 1849, only three years and five months from the time the plaintiff could have brought his action, and of course he was not barred. The Act of 1847 extends the period within which a magistrate’s judgment may be enforced to four years; but that Act is prospective, and does not apply to this case. The motion to reverse the magistrate’s judgment is granted.

O’Neall, Frost, Withers and Whitner, JJ., concurred.

Motion granted.  