Stille v. Wood

1 N.J.L. 139

Opinion

Kinsey, C. J.,

delivered the opinion of the court.

As to the first objection taken by the defendant on this motion in arrest of judgment, we think that a sc ire facias lies under the statute in all cases where the whole debt has not been levied upon the execution. 1 Richardson’s B. R. 289 ; Kettleby v. Hales, 3 Lev. 119 ; Lutes 402.

On the second objection — regularly, the sci. fa. should have been special pro residuo, reciting the previous levy, but the defect cannot, at this stage of the cause, be admitted to prevail. The case in Burrows is clearly distinguishable, and there the error was taken advantage of on demurrer. The case of Kettleby v. Hales was open to the same objection, but it does not appear to have been thought of. At any rate, after verdict the objection comes too late.

Judgment for plaintiff.