
    Margaret D. Hess vs. John Sims, Chairman, &c.
    
    Nashville,
    January, 1829.
    Where a judgment in ejectment has Jain dormant fora year, a scirefa-tias must issue to revive it, before a writ of possession can issue.
    This was a motion made to quash an execution, which had been issued upon a judgment in ejectment, rendered by the supreme court, in favor of John Sims against Margaret D. Hess. The execution issued upwards of a year alter the rendition of the judgment; nor had any execution ever been delivered to the sheriff to execute within the year.
   Opinion of the court delivered by

Judge Catron.

No execution had been issued and put into the sheriff’s hands until after the judgment was a year old, when one issued, which is now asked to be quashed. There was a writ oí possession made out by the clerk, but never put into the "heriff’s hands-

The English rule is, that the execution may issue with-hi the year, upon the return of which the court may order, for the sake of form, continuances upon the roll of former executions which did not come to the sheriff’s hands. This in practice has never been required in Tennessee. The execution must come to the sheriff’s hands, and be returned by him, to authorize the continuance, and unless this issues before the expiration of the year after the judgment is rendered, it is voidable, and subject to be quashed. This was the precise case of Blayer vs. Baldwin, 2 Wilson R. 82 — 1 Tenn. Rep. 64.

But it is contended that no sci. fa. is necessary in cases of ejectment, no execution having issued within the year. The sci. fa. was given in personal actions when the judgment was for money, by the statute of-Westminster 2, ch. 45, and it was once doubted whether it applied to eject-ments. This has long been settled, and it never was doubted but that a judgment in a real action, or ejectment, could not be executed if the plaintiff lay by more than a year, “because it shall be presumed that he hath released the execution, and therefore the defendant shall not be disturbed without being called upon and having an opportunity in court of pleading the release, or shewing other cause why the execution shall not go.” The doctrine is lucidly laid down in Tidd’s practice, 1000 to 1005 —Runnington on ejectment, 426-7.

Since the case of Withers vs. Harris, (1 Salk. 258) the practice has been to issue a sci. fa. in ejectments as in other actions. It vras there very properly treated as a real action. So it certainly is in Tennessee since the act of 1801, ch. 6, sec. 60, and in real actions in England a sci. fa. did lie at common law.

Were we to say that no sci. fa. was necessary in this instance, it would follow, that a writ of possession might legally issue twenty years after the judgment rendered. The consequences of such a decision need not he pointed out.

Let the writ of possession be quashed at the cost of the plaintiff in ejectment,

Writ quashed,  