Bryan v. Comly

2 Miles 271

• Court: Pennsylvania Court of Common Pleas, Philadelphia County
• Decided: November 10, 1838
• Status: Published

Opinion

Per Curiam.—

The act of 1809, extends only to cases of judgments on special verdicts, demurrers, and cases stated. The acts of 1834 and 1836 do not alter the law, that a writ of error, on which bail has been duly entered and served at any time before execution issued, or if issued, before it is executed, (which, in the case of a fieri facias, is so considered if levied,) prevents execution. The limit as to time is prescribed by the act of 1791, which is seven years, with certain exceptions in favour of minors, &c. An analogous rule is found in the case determined on the act relating to justices of the peace, by which bail for stay of execution may be entered more than twenty days after judgment, and it will prevent the issuing of an execution. (Man v. Alberti, 2 Binn. 195.)

The acts referred to simply provide, that the writ, if issued within three weeks from the day of the judgment, shall be a super-sedeas, although an execution within that time may have been issued and executed. It is not necessary that the plaintiff in error should give notice to the opposite party of his writ. 5 Taunt. 204; Tidd 1172; Bingham on Ex. 265; 17 Johns. R. 74; 2 Harr. & Johns. 7.

Rule absolute.