Stille v. Wood

1 N.J.L. 118

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 scire 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.