Opinion
June Term, 1828.
From Richmond.
A levy upon land under a justice's judgment, made more than three months after the date of the execution, being void, a sci. fa. against heirs founded on it was dismissed.
THE plaintiffs obtained a judgment quando against the executors of Duncan McFarland, before a magistrate, who found the plea of fully administered in favor of the defendants. An execution on this judgment issued on 6 February, 1826, which was renewed on 8 July following. On 15 January, 1827, the renewed execution was levied upon the land which had descended to the heirs of Duncan McFarland, the present defendants, who were brought into court by writ of scire facias under the act of 1791, Rev., ch. 352.
No counsel for either party.
On the last circuit his Honor, Judge Norwood, dismissed the sci. fa. on account of the irregularity in the levy, and the plaintiffs appealed.
The act of 1803, Rev., ch. 627, directs that all executions issued by a justice of the peace shall be made returnable within three months, and that in case it is not discharged, another execution shall be issued for what appears to be due. The execution in this case was renewed on 8 July, 1826; but it was not only not returned within three months, but it was executed after their expiration, viz., on 15 January, 1827, more than six months after it had issued. I therefore think the judgment of the Superior Court should be affirmed.
PER CURIAM. Judgment affirmed.
(445)