Majority
p. 645Church vs. Cole and others.
Headnote
The plaintiff may bring an action on a judgment, though time enough has not elapsed since it was entered to entitle him to a fi. fa. thereon pursuant to the act of May 14th, 1840.Motion in behalf of the defendants, for a rule that the proceedings on the part of the plaintiff be stayed, or that the plaintiff discontinue, with costs.
The action was debt, on a judgment in assumpsit. The motion was founded "on the fact, that the action had been brought within the thirty days allowed to the defendants by the statute, (Sess. Laws of 1840, p. 334, § 24,) before the plaintiff would have had a right to his fi. fa.
E. D. Smith, for the motion,
said, that the court would stay proceedings in debt on a judgment pending a writ of error, because it is a supersedeas of execution; and he contended this case was like that. (Vid, Gr. Pr. 951, 2d ed., and the books there cited.)
W. S. Bishop, contra.
The two cases áre not parallel. To stay execution by writ of error, bail must be given. The statute in question stays it without. Beside, the statute is in derogation of a common law tight; and should not be enlarged by construction The. motion müst be iáehi'éd with costs.
Rule accordingly.