Valkenburgh v. Harris , 3 Denio 162 ( 1846 )

By the Court, Beardsley, J.

The entry on the roll, in a case like this, is that the plaintiff have execution against the defendants according to the force, form and effect of the former recovery, and that he also recover costs on the scire facias. (2 R. S. 576, § 1; id. 612, § 3.) It is, in strictness, a judgment for execution according to the first recovery, and for costs. (Philipson v. Mangles, 11 East, 516.) The execution must issue upon the judgment on the scire facias, and not on the original judgment. (Davis v. Norton, 1 Bing. 133.) The case is within the act of 1840, and a writ of fieri facias cannot regularly issue, until after the expiration of thirty days from the entry of the judgment. (Laws 1840, p. 334, § 24.) This execution must be set aside, with costs.

Motion granted.