
    *Avery v. Robinsons.
    Argued Monday, March 13th, 1815.
    i. Elegit — Quashed—No Entry o( Election. — A writ of elegit, issued in 1812, on a judgment rendered in 1806, (in which year a fieri tacias upon it was returned nulla bona,) ought not to be quashed on the ground that no previous entry had been made, on the record, on the plaintiff’s election to take elegit; nor because it was issued without obtaining the leave of the court; the motion to quash it Tjeing made by the defendant, against whom the judgment was rendered, and not by a purchaser from him.
    See Rev. Code, 1st yol. ch. 151, sect.'2, p. 296 ; Eppes v. Randolph, 2 Call, 186.
    A motion was made to the Superior Court of law of Monongalia County, September 12th, 1812, to quash a writ of elegit, issued by the clerk of that court, on the 6th of January 1812, upon a judgment, bearing date the 16th of May, 1806, in favour of the appellees against the appellant. It appeared, that, on the 4th day of June, 1806, the plaintiffs prosecuted a writ of fieri facias on the said judgment, directed to the sheriff of Wood County, and returnable on the 15th of September 1806 ; that on such writ of fieri facias the sheriff aforesaid returned that the defendant had no goods and chattels to satisfy the same ; and that the writ of elegit in question, was sued out, without the plaintiffs having entered on the record their election to take such writ.
    The Superior Court over-ruled the motion ; whereupon the appeal was taken to this court.
    Williams, for the appellant.
    After taking out the fieri facias in 1806, without entering on the record their election to take the elegit, the plaintiffs could not, in 1812, take out an elegit, without leave of the court. If the issuing an elegit by the clerk, after such lapse of time, could be permitted; intervening purchasers of the land might be injured, when they had no reason to calculate on the debt’s being still due ; the judgment having lain dormant so long.
    
    No counsel appeared for the appellees.
    December 8th, 1815,
    
      
       Note. There did not appear to be any purchaser of the land in this case. — Note in Original Edition.
    
   the court affirmed the judgment, over-ruling the motion to quash the elegit.  