Phillips v. Lowndes

The plaintiffs had obtained judgment against the defendant at July term, 1801. A ca. sa. was issued, November 8, 1804, which was countermanded by the plaintiffs, and a fieri facias issued on the 21st November, 1804, which was also countermanded. On the 29th of December, 1803. Mr. Swann, for the plaintiffs, applied to the clerk for a new execution, which the clerk declined to issue, as the year and day . had elapsed since the issuing of the last

Mr. Swann now moved the court to instruct the clerk to issue a new execution, and in support of the motion filed an affidavit that the delay was at the defendant’s request, and for his accommodation, and cited the case of Michell v. Cue, 2 Burrows, 660.

Upon the authority of which ease, THE COURT permitted the plaintiff to take out his execution, leaving it open to a motion to quash, at its return. THE COURT also examined the following authorities: 2 Show. 235; Carth. 283; Comb. 232; 2 Just. Inst. 471; Co. Litt. 290b; 2 Leon. 77, 78. 87; 3 Leon. 259; 4 Leon. 44; 1 Sid. 59; 1 Keb. 159; 6 Mod. 288.