Knight v. Vincent

1 Wright 748, 1 Ohio Ch. 748

• Court: Ohio Supreme Court
• Decided: November 15, 1834
• Status: Published

Opinion

WRIGHT, J.

The statute makes it the duty of the justice after-judgment to issue execution, unless otherwise directed, if the defendant shall fail to pay or give bond for a stay of execution: (29' O. h. 181.) The law does not require this of the justice after bail, is given, for stay of execution, nor can we suppose it intended by the legislature to make the judge the general agent of whatever parties have judgment before him. If the party entitled to would obtain process, he must sue for it, or demand it of the officer authorized to issue, and if he refuse, he may be liable.

749] *The averment of the demand has no certainty. Whether-the request was made by the plaintiff, or his agent, or by what agent, or when, or where, are all uncertain. The party making the averment is supposed to know the matters set forth and to aver-them with certainty to a common intent. He has not done so. A request of an execution of a justice, when not at his office, though-in the township, unless in writing, would not subject the justice to-suit for neglect.

Judgment affirmed.