
    EDDY v. WILLIAMSON.
    On Certiorari to a Justice of the Peace.
    If á suit is commenced by summons, and judgment is rendered for the plaintiff, it is irregular to issue execution thereon before the expiration of the time of delay allowed to a freeholder, unless applied for instanter at the. time of rendering judgment; or, at a subsequent day, upon the proper affidavit, and notice to defendant, of the intended application.
    
      I). A. Hayes for plaintiff in Certiorari.
    
    The object of this writ was to set aside the Execution issued in this cause. The Judgment was rendered against the defendant below, who is plaintiff in Certiorari, in his absence, on the fourth of January 1838. On the fifteenth of February following, the Justice issued an execution on the application of the plaintiff and on an affidavit of danger, made by him, without any notice to the defendant, of such application. The suit had been commenced by summons, 2 Green, 39 was cited by plaintiff’s counsel.
    
      I. H. Williamson, contra.
    There was no appearance to the suit, and no defence made. The statute requires the justice to be satisfied in such cases. He says upon his record, he was satisfied. The case in 2d Green, 39, was after a trial in defendants’ presence; and after he had gone away, the execution was applied for, and issued without notice to him.
   Hornblower, C. J.

If the execution had been applied fo1’ upon the same day, immediately after the rendition of the judgment, I should think notice unnecessary. If the defendant had attended, it would have been competent for the plaintiff to have moved for execution in open Court, instanter, without any new notice to defendant and the defendant by absenting himself, cannot deprive the plaintiff of his right to make any motion which he might have made if the defendant had attended in obedience to the process, or according to the adjournment. But in this case, the execution was not applied for in open Court on the same day, but at a subsequent day, when the defendant was not bound to be there. In my opinion, therefore, the defendant was entitled to notice of the application.

Ford, Justice, concurred.

White, J. If a defendant does not appear on the return day, or on the day to which the cause stands adjourned, an execution may issue on application and a proper affidavit then made.

Dayton, J. The case is substantially like that in 2d Green.

Execution set aside.  