Hornblower, C. J.
The counsel for the plaintiff in certiorari, in opening this case, stated, that the object of the plaintiff was to reverse and set aside so much of the proceedings of the justice as relates to the awarding and issuing of the execution. Upon inspecting the transcript, it appears, that the trial was had and the judgment rendered, in the presence of the defendant below, who is the plaintiff in certiorari.
After rendering judgment, the justice has entered upon his docket as follows, viz:—“ After the parties separated, the plain[41] tiff made and filed an affidavit, and I issued execution immediately.” An affidavit of what, or for what purpose, is not stated on the record ; hut the justice has sent up, with the transcript, an affidavit made before him, by the plaintiff below, on the same day that judgment was rendered ; which affidavit is in the words following: “ Essex county, ss. The said Sebastian, being duly sworn, on his oath saith, that if execution doth not issue immediately against the said Baldasor Krumeick, he believes himself in danger of losing the debt and costs recovered in the aforesaid action against the said Baldasor Krumeick, ;and further saith not.”
This no doubt is the affidavit upon which the justice awarded .and issued execution. The first question to be considered, is whether the proceedings in a case like this, can be brought here upon certiorari, for the purpose of reviewing and correcting any •error in the awarding or issuing execution in the cause ?
By the sixth section of the supplement to the act constituting •courts for the trial of small causes, Rev. Laws 796-8, it is enacted, that no judgment from which an appeal is given, shall be .removed into the Supreme Court, by certiorari or otherwise, for the correction of any supposed error therein,”—that is, for the correction of any supposed error in the judgment render-■e; 1 by the justice. But it does not follow that this court may not require the judgment and proceedings had before the justice to be certified into this court, for the purpose of seeing whether the justice has not exceeded his jurisdiction, or of correcting lis proceedings subsequent to the judgment. It is true, in all the cases cited by the plaintiff’s counsel from Pen. Rep. 1 Pen. R. 137, ibid 156, 7 ; ibid 317, 319; 2 Pen. R. 529, ibid 624, in which this court set aside the execution as unduly issued, it was upon the ground, that there had been no lawful judgment to war-l-ant the execution, and in those cases the court reversed and set aside the whole proceedings. Nor am I aware of any case, in which this court have set aside an execution, issued by a justice where there has been a lawful judgment, or a judgment not under the control of this court.
But I cannot discover any solid or legal objection to such a proceeding. The provision in the statute, taking away from this court the right of reviewing in the first instance such judg[42] ments, as are subjected to the ordeal of an appeal, to the Court of Common Pleas, does not in terms, and need not by implication, restrict the general superintending jurisdiction of this court over other proceedings in the court for the trial of small causes ; and if an irregular or erroneous execution, issued out of that court, cannot be arrested or set aside, because we cannot impeach or control the judgment on which it is founded, great oppression and injustice may be done, as in the case of judgment for one sum and an execution upon it for another or larger amount, or a judgment against executors or administrators as such, and an execution against their persons. Though a judgment cannot be affirmed in part and reversed in part, it being an entire thing, 2 Bac. Abr. 500, tit. Error; Coxe R. 34. Yet where there are distinct independent judgments in one action, as in an action of account, or in dower, judgment may be reversed in part and affirmed for the residue. Hay v. Imlay, 2 Pen. Rep. 832, &c. and see 2 Saund. 101, n. v ; 1 Str. 828; 2 Ld. Ray. 893; Bart v. Lookup, 4 Burr, 2018. The awarding of or issuing execution is no part,of the, original judgment. It is a subsequent and distinct proceeding in the cause, to take place when the time elapses, or the circumstances exist, which by law entitle the party to have execution.
Was then 'the execution regularly and lawfully issued by the justice in this case ?
By the 24th section of the act constituting the justices court, Pev. Laws 629, 635, it is provided, that if judgment is given against a freeholder for a sum exceeding sixty dollars, no execution shall be issued thereon until after six months, “unless the party in whose favor judgment may be given, shall make it appear to the satisfaction of the justice, either on his or her own oath or affirmation, or the oath or affirmation of some indifferent person, that he or she is in danger of losing his or her debt, &c. if such delay of execution be allowed ”—and then the act makes it the duty of the justice to issue execution immediately, “ unless the party against whom judgment is given, shall thereupon give security, &c. for the payment of the debt, &c.”
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Hornblower, C. J.
The counsel for the plaintiff in certiorari, in opening this case, stated, that the object of the plaintiff was to reverse and set aside so much of the proceedings of the justice as relates to the awarding and issuing of the execution. Upon inspecting the transcript, it appears, that the trial was had and the judgment rendered, in the presence of the defendant below, who is the plaintiff in certiorari.
After rendering judgment, the justice has entered upon his docket as follows, viz:—“ After the parties separated, the plain[41] tiff made and filed an affidavit, and I issued execution immediately.” An affidavit of what, or for what purpose, is not stated on the record ; hut the justice has sent up, with the transcript, an affidavit made before him, by the plaintiff below, on the same day that judgment was rendered ; which affidavit is in the words following: “ Essex county, ss. The said Sebastian, being duly sworn, on his oath saith, that if execution doth not issue immediately against the said Baldasor Krumeick, he believes himself in danger of losing the debt and costs recovered in the aforesaid action against the said Baldasor Krumeick, ;and further saith not.”
This no doubt is the affidavit upon which the justice awarded .and issued execution. The first question to be considered, is whether the proceedings in a case like this, can be brought here upon certiorari, for the purpose of reviewing and correcting any •error in the awarding or issuing execution in the cause ?
By the sixth section of the supplement to the act constituting •courts for the trial of small causes, Rev. Laws 796-8, it is enacted, that no judgment from which an appeal is given, shall be .removed into the Supreme Court, by certiorari or otherwise, for the correction of any supposed error therein,”—that is, for the correction of any supposed error in the judgment render-■e; 1 by the justice. But it does not follow that this court may not require the judgment and proceedings had before the justice to be certified into this court, for the purpose of seeing whether the justice has not exceeded his jurisdiction, or of correcting lis proceedings subsequent to the judgment. It is true, in all the cases cited by the plaintiff’s counsel from Pen. Rep. 1 Pen. R. 137, ibid 156, 7 ; ibid 317, 319; 2 Pen. R. 529, ibid 624, in which this court set aside the execution as unduly issued, it was upon the ground, that there had been no lawful judgment to war-l-ant the execution, and in those cases the court reversed and set aside the whole proceedings. Nor am I aware of any case, in which this court have set aside an execution, issued by a justice where there has been a lawful judgment, or a judgment not under the control of this court.
But I cannot discover any solid or legal objection to such a proceeding. The provision in the statute, taking away from this court the right of reviewing in the first instance such judg[42] ments, as are subjected to the ordeal of an appeal, to the Court of Common Pleas, does not in terms, and need not by implication, restrict the general superintending jurisdiction of this court over other proceedings in the court for the trial of small causes ; and if an irregular or erroneous execution, issued out of that court, cannot be arrested or set aside, because we cannot impeach or control the judgment on which it is founded, great oppression and injustice may be done, as in the case of judgment for one sum and an execution upon it for another or larger amount, or a judgment against executors or administrators as such, and an execution against their persons. Though a judgment cannot be affirmed in part and reversed in part, it being an entire thing, 2 Bac. Abr. 500, tit. Error; Coxe R. 34. Yet where there are distinct independent judgments in one action, as in an action of account, or in dower, judgment may be reversed in part and affirmed for the residue. Hay v. Imlay, 2 Pen. Rep. 832, &c. and see 2 Saund. 101, n. v ; 1 Str. 828; 2 Ld. Ray. 893; Bart v. Lookup, 4 Burr, 2018. The awarding of or issuing execution is no part,of the, original judgment. It is a subsequent and distinct proceeding in the cause, to take place when the time elapses, or the circumstances exist, which by law entitle the party to have execution.
Was then 'the execution regularly and lawfully issued by the justice in this case ?
By the 24th section of the act constituting the justices court, Pev. Laws 629, 635, it is provided, that if judgment is given against a freeholder for a sum exceeding sixty dollars, no execution shall be issued thereon until after six months, “unless the party in whose favor judgment may be given, shall make it appear to the satisfaction of the justice, either on his or her own oath or affirmation, or the oath or affirmation of some indifferent person, that he or she is in danger of losing his or her debt, &c. if such delay of execution be allowed ”—and then the act makes it the duty of the justice to issue execution immediately, “ unless the party against whom judgment is given, shall thereupon give security, &c. for the payment of the debt, &c.”
The late Mr. Justice Pennington, in his treatise upon the court for the trial of small causes, 2d edit. 53, speaking of this part of the act, says: “ The common practice I understand, is [43] for the plaintiff to make oath, that he verily believes that he is in danger of losing his debt or demand, unless execution issues immediately, or some oath or affirmation of like import. On this the justice thinks himself justified, and even bound to issue execution immediately. As far as this practice hath obtained, it is certainly wrong. It is not put to the conscience of the plaintiff, but to the sound discretion of the justice, on the facts disclosed to him under oath. The facts sworn to, must be such as to carry conviction to the mind of the justice that the delay will endanger the debt. The language of the act is, shall make it appear to the satisfaction of the justice—not that the plaintiff can reconcile it to his conscience, to say under oath, that he thinks there is danger. But the justice after hearing the facts and circumstances detailed, under oath, must say,” or be able to say, “ that he thinks, in his conscience there is danger.’' I have cited this passage at large, because we think it expresses the sound and reasonable construction of the act. But in the case before the court, the justice seems to have fallen into the common error, spoken of by the author. He took and filed the plaintiff’s affidavit, it is true ; but it is an affidavit of what the plaintiff thought and believed about the matter ; instead of an affidavit, disclosing some particular facts and circumstances relating to the defendant’s conduct or pecuniary affairs, upon which the justice could exercise his judgment, and form his opinion or belief in the case. The justice was satisfied there was danger in delay, because the plaintiff was; and therefore issued execution immediately. This was clearly wrong if the defendant was a freeholder ; and it must be conceded upon this record, he was such; for otherwise there was no use of any affidavit at all; and the plaintiff was entitled to have execution immediately upon the rendition of judgment in his favor. Besides the defendant was sued by summons ; and the last clause of the 24th section, Rev. Laws 636, enacts that in all cases where the defendant is sued by summons, the justice may consider and proceed against him as a freeholdder, unless the plaintiff shall satisfy him to the contrary.
But the justice committed an error also, in issuing the exection, without giving the defendant an opportunity of putting in security, and thereby availing himself of the protection and indulgence which the act of assembly extends to freeholders un[44] der such circumstances. For notwithstanding the justice upon a proper state of facts may be satisfied that delay will endanger the debt, &c. yet, the defendant may postpone the execution, by giving security to the plaintiff for the damages or costs ; but how can he do this, unless the application for execution is made in his presence, or notice thereof is given to him ; or at least notice, that such proof has been made and that execution will issue accordingly, unless security is given. The language of the act is, “ unless the party, &c. shall thereupon give security, &c.’: Thereupon, upon what ? Most manifestly from the plain reading of the law, upon the justice being satisfied, as before mentioned.
If therefore the application for execution is not made immediately upon the rendition of judgment and in the presence of the opposite party; but the successful suitor waits till his adversary has retired; or makes his application on a subsequent day, notice ought to be given to the other party, and a reasonable opportunity afforded him to comply with the provision of the act; or,else those provisions-are idle and illusory. It is too late to give the security after the execution is issued. It is to prevent, not to supercede it after it has been issued. I am sensible there may be peculiar circumstances, rendering the giving of notice'difficult, or even impossible ;..or where such a notice to a failing or fraudulent judgment debtor would increase the plaintiff’s danger, or prove fatal to the recovery of his money. In such cases the justice must be governed by a sound discretion in view of the peculiar facts disclosed to him by the plaintiff, and direct such notice to be given as the exigencies of the case may dictate. If the defendant cannot be found, or avoids the service of a notice, those facts ought to be made to appear to the justice, who should state them upon his record as the reason why execution was issued, without any notice being served on him. The effect of such a proceeding may, when the case happens, require the consideration of this court; but the mere danger that the party may make an improper use of the notice, will not justify this or any other court in dispensing with it.
Let the execution issued by the justice in this cause, be set aside, and declared void, and the record be remanded to the justice with a copy of this order, to be by him proceeded on according to law.
Cited and Reviewed in Shay v. Norton, 1 Harr. 379.