
    THARA MESSICK vs. WILLIAM RUSSEL.
    SÉxeoutioil may be issued on judgments before a.justice of the peace at any time within three years, without scire facias.
    
    An alias execution may in the same manner issue within the three j'ears.
    If execution be begun ioühin the three yéafs and extended beyond that time, it may bd followed up by alias issued upon 'the day on Which the previous execution is returnable,
    If not so issued, no subsequent^?, fá. can isshe without a scire facias.
    
    CeutioraRi to Justice Ponder.
    Record. Rüssél vs. Messiclo Judgment obtained before Justice Hall 25th November, 1832. Fi. fa. issued 25th November, 1832, returnable 1st September. Execution returned 19th January, 1833, “defendant carried to jail.” Alias execution issued 25th Mays 1839, Returnable 14th November, 1'839.
    The question presented wa's whether, after judgment and execution issued and returned, all -alias execution could regularly issue, after the lapse of three years, without a previous scire facias.
    
    Section 29 of the act “for the recovery of small debts,” provides that “an execution may be issued upon a judgment (unless the defendant or debtor therein shall die, so as to require process against an executor or administrator) at any time within three years from the time when execution could have first regularly issued, without any scire facias; and after the expiration of that time without an execution, none shall be issued until the judgment shall be revived by scire facias.”
   The Court

had no difficulty in quashing the alias execution in this case on the return; because “defendant carried to jail” is a full execution of the writ, and a satisfaction of the debt, until it is made to appear that he had been discharged from prison under the insolvent laws, or otherwise, so as to leave the plaintiff’s debt unpaid and remedy still open under the judgment; which could not appear without a scire facias.

But on the general question, as an important one affecting the practice before magistrates, the Chief Justice said: “The 29th section of the act of assembly which creates the jurisdiction of justices of the peace, expressly authorizes the issuing an execution at any time within three years from the time when execution could have first regularly issued, without a scire facias; and then provides, that ‘after the expiration of that time, without an execution, none shall be issued until the judgment shall be revived by scire facias.’ The question presented is, whether this latter clause does not by implication, authorize the issuing of an execution after the lapse of three years without a scire facias, when one has been previously issued within that period, but has failed to satisfy the judgment. The question may be answered in the affirmative-; but another presents itself as to the time at which such alias execution may be issued. May it be done at any period? at the expiration of ten or even twenty years? Considering the nature of this jurisdiction, the 'class of the community mostly affected by it, and the character of the tribunal, it would be dangerous to allow such latitude of authority if the general rules of law applicable to the subject do not control it.

The rule of law with regard to executions is, that in all continued writs the alias must be tested the day the former was returnable. (2 Salk. 699.) As justices of the peace have no stated terms, and there can be no fiction of ‘continuances on the roll,’ it follows that the alias must be issued on the day of the return of the first writ, or it cannot be issued at all. The implied authority, therefore, to issue an alias execution after the lapse of three years without a scire facias, being controlled by this principle, is restrained to the case where the previous execution overreaches that period, and the alias is issued on tlie same day on which the first execution is returnable. This principle is not intended to be applied to an alias execution, issued within the period of' the three years allowed by the act of assembly. The alias execution in this case having been issued after the lapse of three years from the time when execution could have been first regularly issued without a scire facias, and more than seven years after the return of the first writ must be set aside.

Alias execution set aside.  