Otwell v. Messick , 9 Del. 542 ( 1873 )

CERTIORARI. The judgment in the case had been entered on a note under seal with a warrant to any justice of the peace to enter judgment upon it, but the note was by its terms made payable at a future clay, and before that day judgment was entered generally upon it without any stay of execution, and before that day also execution had been issued upon it. One exception was that no stay of execution was granted or mentioned in the entry of the judgment although it appeared from it that the note was not payable until after the entry of it; and another exception was to the execution merely, because it had been issued before the debt or judgment either was properly payable.

The Court, on recurring to sec. 11, chap. 114,Rev. Code Amend. 695, as to the costs on a certiorari in such a case, gave the plaintiff leave to amend by withdrawing the former exception, which was to the judgment alone, and directed a judgment to be entered in his favor on the latter, setting aside the execution simply, as the stay of payment on the note had in the meanwhile expired.