Tennessee Superior Court for Law and Equity, 1804

Cowan v. Shields

Tennessee Superior Court for Law and Equity · Decided September 6, 1804 · <italic>Per Curiam.</italic>

1 Tenn. 64

Counsel

TRIMBLE, for the defendant, moved to quash the writ upon two grounds. 1st. It appears by the return of a fi. fa. that the judgment has been satisfied, and consequently there is no judgment to authorize the writ. 2d. Admitting it was not the case, an execution may issue upon the judgment, one having been taken out within a year and a day. 2 Sellon's Practice, 277; Tidd's Practice, 1004. WILKERSON, e contra, cited Morgan's Attorneys Vade Mecum, 104. The sci. fa. lies, and if the party means to show payment he must plead it. Though execution issue, if it be not continued on the roll, but lies still a year and a day, a sci: fa. is necessary.

Opinion of the Court

[S. C., infra, 314.] A judgment which appears of record satisfied cannot be the ground of a sci. fa. The defendant's motion is proper.

Where execution has issued within a year and a day, another may issue afterwards without a sci. fa., and the continuances may be entered at any time, not being essential.¹ Let the writ be quashed.

Note — In Simmonds v. Wood. 6 Y. 518, it was held that an execution issued more than a year and a day after judgment was not void, but only voidable, at the instance of the defendant Afterwards, by 1849, 37, brought into the Code, § 2987, scirefacias to revise is dispensed with in such cases, and execution issues after the year and day as if issued within that time. And see Gregory v. Chadwell, 3 Cold. 391. —ED.

¹ See 2 Wil. 82; Comb. 346; 7 Mod. 50; 2 Ld. Ray. 800; Hardin, 521; 6 Johns. 105.

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