
    SUPREME COURT.
    McSmith agt. Van Deusen.
    Where an execution has been issued within five years from the entry of judgment, the party may issue execution at any time thereafter without application to the court.
    
      May Special Term, 1854.
    This was a motion to set aside an execution against property, on the ground that it had been issued more than five years after the entering of judgment. It appeared that an execution against property had been issued and returned unsatisfied, soon after the recovery of the judgment, and less than five years before the issuing of the execution claimed to be irregular.
   Parker, Justice, denied the motion, and held, that no motion for leave to issue execution was necessary, except in cases where no execution had been issued within the five years, thus agreeing with Mason, J., in Pierce agt. Crane, (4 How. Pr. Rep. 257,) and differing from Mitchell, J., in Currie agt. Noyes, (1 Code Reporter, 198, new series.)

He held that where an execution had been issued within the five years, the party might issue execution at any time thereafter without application to the court.  