Clute v. Clute

By the Court, Bronson, Ch. J. On looking into the papers I am satisfied that at the time the judgment was confessed, and for several days afterwards, the defendant intended to give the plaintiffs a preference over his other creditors. His mind has changed since that time. If the execution stands, the intention of the parties will be carried into effect: if set aside, their intention will be defeated. Although in consequence of some accident the execution was issued too soon by an hour, it was not levied nor was any thing done under it until several hours after the judgment had been perfected. As a general rule the court does not inquire into the fractions of a day, except for the purpose of guarding against injustice; and that rule has been applied in a case like this. (Small v. McChesney, 3 Cowen, 19.) No injustice will be done by allowing the execution to stand. Motion denied.