Jackson, ex dem. Bogert, against Schauber

Jackson, ex dem. Bogert, against Schauber. UTICA, August, 1827. A writ of vrttMn8 4^ days after judgment supersedest6d’ execution, though It be levied; and if session, be exeeuted, restituawarded^1 And enlarge6 ™he time, by order, aays“in which case the court by * ^directing the^exMution tó stay, or Mhe^fronf the operation of asVTchoumi stances quise. re- The defendant having taken a bill of 'exceptions at the ^ntended to bring error. At the close of May term, 1827, this court refused a new trial; and within four days after the judgment was perfected by the plaintiff by filing the record, the defendant, finding that he was going on to ’ . „ .■ ° , , ° . . execute writs of possession, obtained an order from his honor Mr. Justice Wooworth, to stay proceedings for 10 days, to the end that the defendant might bring error, if he should elect so to do. On the 13th, the defendant, finding writs possession were in the way to be executed, obtained another order to stay proceedings till further order, with a view to move this court on the subject. A wrjt of error was brought, and bail in error put in on the 12th of June, and notice given to the plaintiff’s attorney. Possession was not delivered under the writ; but it contained a ft. fa. for costs, which was levied on the defendant’s property within the four days, J. Sudam, for the defendant, now moved that a supersedeas of the execution issue. L. H. Palmer and J. L. Wendell, contra, cited 2 Tidd, 1072, 1073; 2 T. R. 44; 9 John. 66; Willes, 271. [MAJORITY — Curia,] Curia, The plaintiff had a right, within four days after judgment, perfected, to take out execution, and levy; or *to execute the writ of possession. But it was upon peril of error being brought, and bail given within that time, which operate as a supersedeas; and restitution will follow, if necessary. In this case, that has been done in effect, not literally within the 4 days; but we do not doubt the power of a judge to enlarge the time, if done within the 4 days; and, in such case, this court may grant relief. That was done. Error was brought, and bail filed within the time limited by the order. Under the circumstances of this case, let all proceedings on the execution stay, until the further order of the court. Buie accordingly. Vid. Blunt v. Greenwood, 1 Cowen, 15. Jackson v. Varick, ante. 412