The opinion of the court was delivered, by
Treating this attachment execution for the present as an execution within the meaning of the Act of 21st May 1861, this case is directly ruled by Billmeyer v. Evans & Rodenbaugh, 4 Wright 324. In the case in hand, as in that, a stay of execution was expressly waived. Without the waiver the parties signing the note would have been entitled to a stay on the judgment entered on the note of six months. We held in the case cited that the proviso to the first section of the act allowing a stay in favour of a soldier, notwithstanding a waiver, was unconstitutional, as impairing the obligation of the contract. The case is directly in point, and rules this one. The stay ordered was wrong, and the order must be reversed.
The order of the Court of Common Pleas of Wayne county, entered in the above-entitled suit, made on the 2d of February 1863, is reversed and set aside, at the costs of the defendant in error, with leave to the plaintiff to proceed with his execution attachment.