Mattocks v. Judson

The opinion of the court was delivered by Williams, Ch. J. The defendant contends, that the execution against Bellamy issued prematurely, that is, within twenty-four hours from the rising of the court. The statute, 95th Sec. of the Judiciary act, proviso, is, “ that no execution shall is- “ sue on any judgment rendered by either the supreme or coun- “ ty court, until twenty-four hours after the rising of such court, “ unless by the special permission of the judges of said court.” Whether the bail can avail themselves of such an irregularity in the issuing the execution, is somewhat questionable; but if they £an avail themselves of it as a defence to the scire facias, it qpust be shewn to the court by plea. The writ, in the case before us, to which there is a general demurrer, is apparently good. On examining the record, the judgment against Bellamy is regular. If the execution issued irregularly, it might, on motion, be set aside ; or if it issued prematurely, and the bail was injured, the defendant in this scire facias might have shewn it by plea. But on this demurrer,, the court cannot discover, either that the execution issued within twenty-four hours from the rising of the court, or, if it did, that it was not issued by the344 special permission of the judges of the court. The minutes, made by the clerk, of the time of the rising of the court, and of the issuing of the execution either with or without such permission, are no part of the reeord of the judgment. The writ of scire facias, in this case, for any thing which appears, is sufficient, and judgment must accordingly be entered for the plaintiff.