No. 94.

#### William Worthy, plaintiff in error, *vs.*William Lowry, defendant.

[1.] On the 25th December, 1841, judgment was obtained in the Justice’s Court; January 5th, 1842, an execution issued, on which were these entries: *“nulia bona”*by the Constable, 7th February, 1842; *ft. fa.*returned and era. *sa.*issued by the Magistrate 31st January, 1849; levy on laud by ■the Constable, July 28th, 1849. It was admitted that a short time before the last entry, the officer went to arrest the defendant under the *capias,*who pointed out the land; whereupon, the *ca. sa.*was returned and the *Ji-.fa.*re-issued: *Held,*that the judgment was not void under the Act of 1823.

Ol&ini, in Whitfield Superior Court. Tried before Judge Trippe, October Term, 1855.

This case arose from a levy on land of a Justice’s Court *ft. Ja.*against one Carpenter, and a claim by Worthy.

Plaintiff in execution introduced the *ft. fa.*founded on a judgment of the 25th of December, 1841, and issued January 5th, 1842; on which were the following entries : a return of *nulla bona,*made by a Constable Februai’y 7th, 1842; an .entry by the Justice of the Peace, of *“ft. fa.*returned, and *ea. sa.*issued,” dated January 31st, 1849. The *ea. sa.*was produced, and had no entry on it; hut it was shown, that a short time before the present levy, the Constable had gone to arrest the defendant, who had pointed out this lot of land; upon which, the *ca. sa.*was returned, the *ft. fa.*re-issued, and levied on the land now in dispute, July 28th, 1849, which levy was on the /?. *fa.*

Claimant objected to tbis *ft. fa.*as void under the “ Dormant Judgment Actwhich objection was over-rulod by the Court; and this decision is assigned as error.

Akin, for plaintiff in error.

Walker, for defendant.

*518*By the Court.*

Lumpkin, J.

delivering the opinion.

[1.] Was the judgment in this case dormant ?

The Court below decided that it was not; and we think, decided right.

This case is not distinguishable from that of *Strawbridge vs. Mann et al.*(17 *Ga. R.*454.) The facts upon which that case went, were briefly these: That the *ca. sa.*had been preceded by *& fi.fa.*which issued within seven years, and on which there was an entry of *nulla*bona, within seven years from the date of the judgment; that the date of the *ca. sa.*was within seven years from the date of the judgment, and that the arrest took place within seven years from the date of the *ca. sa.*

It is true, that in the case before us, there was no arrest ■of the defendant on the *ca. sa.*within seven years from its date. Rut there is that which is equivalent to it; when the •officer went to make the arrest, the land, which is the subject of this dispute, was pointed out by the defendant, and a levy was made on the land by *tliefi.*fa.; and all this within seven years of the date of the *ca. sa.*Indeed it lacked but a few months of being within seven years of the date of thejudgment.

So much, then, for the identity between the two cases. Rut the case before us has a feature which was wanting in ■the other, namely: the indorsement on *the fi. fa. by*the Justice of the Peace, that the *fi. fa.*had been returned, and that a *ca. sa.*had issued. And this entry was made within seven years from the date of *the fi.fa.*

And which, we would respectfully ask, is best calculated to give notice to creditors and purchasers, that a judgment is open and operative, a credit of five dollars made by the Sheriff or Constable on the execution, and the paper immediately replaced in the pocket or secretary of the plaintiff, or .this •lentry by the Magistrate on this precept ?

Rut Counsel contend that the words of the Act must be *519literally complied with. Very well — if the rule of *literal*interpretation is to be applied, there was a return of “ *no property”*on the *fi. fa.*by the Constable, within seven years from the date of the judgment. And this fully satisfies the words of the Statute. But it is replied, that this Court has. already decided, that the *Equity*of the Statute requires that this entry should be repeated every seven years. This is true, and this Court has also held, in *Strawbridge and Mann,*that just such a case as this does not come within the mischief intended to be provided against by the Dormant Judgment Act. In other words, that by an equitable construction of" the law, this case should be excluded.

We must be consistent with ourselves, at least; we must adopt and adhere to one mode of construction or the other.. Thus far, right or wrong, we have been uniform in putting an equitable construction upon the Act of 1828. And upon-this principle, the past adjudications are all reconcilable. I shall be pardoned, I trust, for saying, however, that with my political creed, being a State Bight’s man of the straightest sect, I never yielded more reluctantly to any judgment pronounced by this Court, than that of *Booth vs. Williams,*(2 *Kelly*253.) The convention of Judges, as early as 1832,. in *Stone against Head et. al. (Dudley,*166,) had ruled, that unless the entry was renewed every seven years, showing continuing vigilance on the part of the plaintiff or owner, that the judgment was void. And believing it to be the first duty of a Judge, as it is of every good citizen, to yield to authority, I surrendered my individual opinion, especially as* the question involved was the construction cf a Statute which had been acted upon so long. We may yet be driven, from-the necessity of the case, to return to the plain and obvious language of the law. For myself, I believe its benefits greatly over-rated. Its only practical effect being, to operate very hard upon kind-hearted and careless creditors.

It is true, that the claimant in this case is probably a purchaser. But if so, the present levy was made within little more than seven years from the date of the judgment, and it* *520does not appear when his title accrued, if, indeed, he. has any.: It is probably within seven years from the date of the judgment. He is not, therefore, one of that class of purchasers, intended to be favored by. the Statute.