Majority
p. 38Kinnie, qui tam, &c. against Whitford.
Headnote
⅛ a qui tam wrifof error°is »ot required by ⅞ /{.a£leÍ43. 2 R. s. 595, ⅛6’ order &<to make *e writ a Where e<<au eXcd ai?l actu" Sy levied, before Ü!? ft i™' sedeas,MOTION on the part of the defendant that the writ of error, filed in this cause, be a supersedeas, to the execution issued on the judgment, &c. It was an action of debt, brought by the plaintiff, qui tam, &c. under the eighth section of “ the act to prevent and punish champerty and #maintenance.” A judgment was obtained by the plaintiff for 400 dollars, and the record was filed on the 31st of May last. Á wrj>t of error cormn vobis was brought to reverse the judgment, and counsel certified that there was error in the record. It ^urt^er appeared, from the affidavit of the plaintiff’s attorney, that an execution had been issued on the judgment, returnable at this term, and was actually levied on the property of the defendant, on the 11th of July last, before the writ of error was allowed and filed.
In a qui tam action, the statute (1 N. R. L, 143. sess. 24. ch. 25. s. 2. 2 R. S. 595, 596. sec. 26, &c.) does not require that bail to a writ of error should be put in, in order to make it a supersedeas. But in this case the execution had issued, and was actually levied on the property of the defendant, before the writ of error was filed; and the writ of error was, therefore, no supersedeas. This W'as so decided in Blanchard v. Myers, ( 9 Johns. Rep. 66 .)[1]
Motion denied.
(a) (a) See Blunt y. Greenwood, 1 Comen, 21. When a writ of error is taken on a judgment in partition, bail is necessary in order that it may operate as a stay of execution; so in ejectment and dower, 6 Cowen, 611.