Majority
p. 19Small against M’Chesney. moved to set aside the execution-and subsequent proceedings in this cause. He shewed, by affidavit, that the execution had issued against the defendant and been levied before the record of judgment, which was by bond and warrant of attorney, had been filed; that is to say, the execution was issued and levied between 2 and 4 o’clock in ibe morning of the 13th July, 1824, whereas the judgment was not signed till about 11 o’clock of the same morning, and the record was not filed till 4 P. M. of the same day. He relied upon Barrie v. Dana, ( 20 John. 309 ) and Lemon v. Heirs of Staats, (1 Cowen's Rep. 592.) The Court said, in the latter case, they would examine the fractions of a day when necessary for the purposes of justice; and it is surely so here. Had the defendant been allowed time to pay the money till the record was filed, perhaps no execution would have been necessary. said that Barrie v. Dana was the case of an execution issued several days after the record filed. Fractions of a day were not in question.
M. Hoffman,
Headnote
The'law win fractionTof1^, fay> as between the psr«« ties, in order to ^eth^r8 the judgment recbefor^execut tI^su®d’uu' actual1 injustice'L. Ford, contra,
The party who moves has sustained no injuryby this proceeding. He does not shew that the money would
p. 20
have been paid, and farther costs prevented, had execution keen delayed till after the filing of the record. The whole proceeding is on the same day, which the law will not divide fractions, unless this be necessary for the purpose of guarding against injustice. Here has been none. The objection is merely technical, and the technical answer is enough where there has been no injury from the proceeding;
Motion denied,!