If the execution had been applied fo1’ upon the same day, immediately after the rendition of the judgment, I should think notice unnecessary. If the defendant had attended, it would have been competent for the plaintiff to have moved for execution in open Court, instanter, without any new notice to defendant • and the defendant by absenting himself, cannot deprive the plaintiff of his right to make any motion which he might have made if the defendant had attended in obedience to the process, or according to the adjournment. But in this case, the execution was not applied for in open Court on the same day, but at a subsequent day, when the defendant was not bound to be there. In my opinion, therefore, the defendant was entitled to notice of the application.

Ford, Justice, concurred.

White, J. If a defendant does not appear on the return day, or on the day to which the cause stands adjourned, an execution may issue on application and a proper affidavit then made.

Dayton, J. The case is substantially like that in 2d Green.

Execution set aside.