subsequent to its issue;1 or in the name of the chief justice;" or out of term;3 or after the plaintiff's death; or for the want of the clerk's signature," or the omission to affix the seal of the court; by correcting the place at which it is tested," or the name of the court in which it is returnable, or the date of its return. An execution returnable out of term, or to the wrong term, or on Sunday, is not void, but amendable.10 § 68. WHEN IT MAY BE AMENDED AFTER LEvy, Sale, and RETURN. An execution directed to the sheriff, but executed by the coroner, is amendable by striking out the word "sheriff," and inserting "coroner; may be by inserting the usual words of authority to the sheriff; 12 or where the words "lands and tenements" were omitted; 13 after a sale on a vendi., all 1 Jackson v. Bowling, 10 Ark. 578. 2 Ross v. Luther, 4 Cow. 158. Brown v. Aplin, I Cow. 203. ry v. Henry, 1 How. P. 167. Spooner v. Frost, I How. P. 192. Hen 3 Denn v. Laconey, 1 N. J. L. 111. Jones v. Cook, I Cow. 309. People v. Judges, 18 Wend. 675. • Center v. Billinghurst, I Cow. 33. Cleer v. Veer, Cro. Ca. 459. Heapy v. Parris, 6 T. R. 368. Lane v. Beltzhoover, Taney, 110. 5 Whiting v. Beebee, 12 Ark. 42. Cowperthwaite v. Owen, 3 T. R. 657. 8 Sawyer v. Baker, 3 Me. 29. Bridewell v. Moody, 25 Ark. 524. Purcell v. McFarland, I Ired. 34. Clark v. Hellen, 1 Ired. 421. Arnold v. Nye, 23 Mich. 286. Corwith v. State Bank, 18 Wis. 560. 7 Porter v. Goodman, 1 Cow. 413. Simon v. Gurney, 5 Taunt. 605. 8 Anon., I Chitt. 350. 9 Boyd v. Vanderkamp, I Barb. Ch. 273. Davey v. Hollingsworth, 2 Tidd. 1037. Forward v. Marsh, 18 Ala. 645. Brown v. Hammond, 10 Cramer v. Van Alstyne, 9 John. 386. Van Dusen v. Brower, 6 Cow. 50. Harrison v. Agricultural Bank, 10 Miss. 307. Inman v. Griswold, I Cow. 199. Stone v. Martin, 2 Denio, 185. Boyd v. Vanderkamp, I Barb. Ch. 273. Hall v. Ayer, 9 Abb. P. 220. "Simcoke v. Frederick, I Ind. 54. Rollins v. Rich, 27 Me. 557. Morrell v. Cook, 31 Me. 120. Sartor v. McJunkin, 8 Rich. 451. 12 Treasurers v. Bordeaux, 3 McCord, 142. Hubbell v. Fogartie, I Hill (S. C.), 167. Giles v. Pratt, I Hill (S. C.), 239. 13 Toomer v. Purkey, 1 Rep. Con. Ct. 323. Jackson v. Anderson, 4 Wend. 474. 3 4 the proceedings being regular;1 by adding a recital of the death of the plaintiff, and the appointment of his administrator; 2 or by affixing the seal of the court, if omitted by the clerk; an erroneous teste; a capias after the defendant's arrest, by adding the teste;5 an alias may be by reciting the proceedings on the first, and that part of the amount was collected, if omitted.6 § 69. WHEN AN AMENDMENT SHOULD NOT BE ALLOWED. No amendment should be permitted when it would destroy or lessen the rights of third parties acquired bona fide, and without notice by record or otherwise; or against another execution; or after defendant's death. Nor has a justice power to amend after the return and execution of final process.10 CHAPTER III. THE ISSUE OF AN EXECUTION. Upon what Adjudications allowed. When it may issue. - Who may issue. To whom it may issue. - Who may cause its Issue. Where it may issue. - When it cannot issue. When it cannot issue without Leave of Court; without Revival. Practice after Death of Plaintiff; of Defend ant. Irregular Issue; voidable. - Void Executions. - Executions in Attachment Suits. § 70. PARUM est latam esse sententiam nisi mandetur executioni. It is to little purpose that a judgment is given, unless it be committed to execution. With the exception of some five or six of the states, an execution may issue immediately upon the rendition, entry, or docketing of the judgment;1 in Maine and Massachusetts, after twenty-four hours; in Arkansas, ten days afterwards; and on judgments in the Common Pleas Courts in Kentucky; on the last day of the term, in Colorado; upon judgments by default, in Wisconsin, when such judgments are rendered in vacation, at the next succeeding term after its rendition. It is a general principle of statutory law that a creditor shall have a certain time allowed him wherein he may cause execution to be issued upon the judgment rendered in his favor, which statutory period varies from a year and a day in some states to ten and fifteen years in others; after which the law then presumes the judgment to have been satisfied, and it loses its effect, and is termed a dor Hastings v. Cunningham, 39 Cal. 137. Sharp v. Lumley, 34 Cal. 611. Carpenter v. Van Scotten, 20 Ind. 50. Erie R. R. v. Ackerson, 33 N. J. L. 33. mant judgment, until revived by scire facias or a simpler process under the code practice, by motion. Judgments, until satisfied, may be enforced by execution in conforming to the statutory provisions of the various states wherein they are rendered. In many they lose their priority if no execution is issued within a year, and the maxim, Qui prior, &c., applies (which will be treated of in its order), whereby the first levy creates priority. At common law the period within which an execution might be issued, without revival of the judgment, was a year and a day. This period has been enlarged in the various states; in Minnesota, Arkansas, and Indiana, to ten years; as long as there is anything due, in Louisiana;2 three years on justices' executions, in Missouri; 3 five years, in California, New York, Kansas, and Ohio. In Michigan, if a judgment is rendered at or so near the close of a term that there is no time for the losing party to move for a new trial or in arrest of judgment at that term, the plaintiff need not wait until the next term before issuing execution. The general rule in regard to the issuing of an execution is, that it may issue at any time within the statutory period. If there was an execution issued within that time, the statutory period commences to run from the last issue of the execution, that is, where the issue of an execution has the effect of keeping a judgment alive. In some states the rule is, that the statute commences to run from the date of the entry of judgment, except where stayed by writ of error, injunction, agreement, and the like; when it is so stayed, the statute commences from the time of the removal of the bar. The better practice, in order to save all priority of liens, and to keep the judgment in force, except when otherwise provided by statute, is to cause an execution to be issued at least once in a year. A justice's judgment, when docketed in an appellate court, has, as a general rule, the same effect as a judgment rendered in such superior court, and the same provisions apply thereto. Before execution can be awarded on a judgment of forfeiture, there must be service, or a return of two nihils, unless the defendant voluntarily appears.1 So, also, on a sci. fa., to foreclose a mortgage, there must be two nihils upon writs returnable at different terms of the court; but both may be returned on the same days they are issued. The execution of a final decree cannot be delayed or varied by the affidavits of the defendants, alleging equities as between themselves.3 § 71. Where a statute requires the issuing of an execution, a legal execution is meant. Where it issued under the seal of a court, the presumption is, that it was issued by the order of the court. Nor will the recovery of a second judgment in an action on the former one prevent the issue of an execution on the previous judgment. A writ of prohibition will not issue to restrain an inferior court from issuing execution.7 Where there is a conditional judgment, that if a certain sum is not paid by a day certain, then the judgment shall stand for a larger sum, execution may issue for the largest sum named in the judgment, in default of the payment stipulated on the day certain. The English rule is, that a party cannot have two concurrent writs at the same time; but where the first is inoperative, a second may issue before the return of the first.10 While in Pennsylvania and North Carolina, the party may Lyttle v. People, 47 Ill. 422. * Williams v. Ives, 49 Ill. 512. 3 Proudfit v. Picket, 7 Coldw. (Tenn.) 563. Early v. Rodgers, 16 How. 599. 451. Miller v. Parnell, 6 Taunt. 371. Dandistic v. Knonenberger, 39 Hodgkinson v. Walley, 2 Tyr. 174 |