HENDERSON SIMPSON v. SAMUEL SUTTON.
The “year and a day” mentioned in the Rev. Code, o. 31, s. 109, runs from the issuing, and not from the return of the execution; Therefore,
Where the former execution had been issued February 14th, 1855, a second, purporting to be an alias, issued May 3d, 1866, was set aside as irregular.
(Boyden v. Odeneal, 1 Dev., 171, cited and approved.)
Motion, to set aside an execution, made before his Honor, Warren, J., at Fall Term, 1866, of the Superior Court of Hertford.
The facts were as follows: The plaintiff, at Fall Term, .1864, had obtained a judgment by default against the defendant, A fi. fa., tested of that term, had issued Feb*113ruary 14th, 1865, being returnable to Spring Term, 1865. A second execution, purporting to be an alias, was issued May 3d, 1866, tested of Spring Term, 1866, and ret turnable to Fall Term, 1866. On the 15th of May, 1866, the defendant executed a deed conveying all of his property (some of which had been levied upon under the execution) in trust to pay debts, excluding the judgment above.
.Upon this state of tacts, a motion was made by the defendant and the trustee, to set aside the second execution, as having issued under a dormant judgment. A counter motion was at the same time submitted by the plaintiff, to amend the former execution by making it returnable to Fall Term, 1865.
His Honor refused the latter motion, and ordered the second execuiion to be set aside.
Smith, for the plaintiff.
Yeatcs, for the defendant.
Reade, J.
Two questions are presented in this case:
1. The power of the court to allow the amendment asked by the plaintiff.
2. The effect of the amendment if made.
It is unnecessary to decide the first question, because the decision of the second disposes of the case.
The amendment, if made, would not avail the plaintiff. The time of issuing process is the time when it leaves the office. Boyden v. Odeneal, 1 Dev., 171. The time of issuing the first fi. fa. was Feb. 14th, 1865. The second. fi, fa. issued May 3d, 1866, more than a year and a day from the issuing of the first. And therefore the judgment was dormant.
It was insisted in the argument that if the first fi,. fa. were amended, so as to make it returnable to Fall, instead of Spring Term, 1865, the issuing of the second would be *114within a year and a day from the return of the first, and that “ the year and a day ” was to be counted from the return of the one to the issuing of the other. But that is not correct, for the statute (Rev. Code, c. 31, s. 109) admits of no doubt that “ the year and a day ” is to be counted, not from the return of one to the issuing of the other, but from the issuing of one to the issuing of the other.
There is no error.
Per Curiam. Judgment affirmed.