
    MOSS v. BIDDLE.
    January 20, 1838.
    
      Rule to show cause why the fieri facias should not be set aside.
    
    The defendant in an amicable action is entitled to enter security for stay of execution for thirty days under the act of 16th June, 1836, relating to executions.
    THIS was an amicable action, and judgment therein entered on the agreement of the parties. The defendant entered security in the nature of special bail for a stay of execution for thirty days under the 4th section of the act of 16th June, 1836 (Stroud’s Purd. tit. Execution.) The plaintiff nevertheless issued a fieri facias, and the defendant obtained this rule to show cause, on the hearing of which,
    
      
      Ingraham, for the plaintiff,
    said the provisions of the act of 16th June, 1836, did not contemplate a right to a cesset for 30 days in amicable actions. The 5th section providing for the case of amicable actions, gives the right to enter security absolute for the stay prescribed by the 3d section, but not as to the 30 days designated in the 4th section.
    ,/. A. Phillips, contra.
   Per Curiam.—

The difficulties supposed by the plaintiff’s counsel to exist, are obviated by a reference to the plain spirit, if not the express words of the act. The ,3d, 4th and 5th sections are in entire harmony not only with each other, but with the 40th section of the act of 13th June, 1836, relating to the commencement of actions, which provides that an amicable action is to be considered “ in like manner as if the defendant had appeared to a summons issued against him by the plaintiff.” This rule, therefore, must b,e made absolute.

Rule absolute.  