People v. Corey & Briggs
New York Supreme Court
Motion to quash a certiorari sued out to remove a cause Feb-1839from a court of common pleas into this court. A judgment was obtained in the Yates common pleas in the name of The People against the defendants, and subsequently a scire facias to obtain execution upon that judgment was sued out returnable in the same court.
Read the full summary
Motion to quash a certiorari sued out to remove a cause Feb-1839from a court of common pleas into this court. A judgment was obtained in the Yates common pleas in the name of The People against the defendants, and subsequently a scire facias to obtain execution upon that judgment was sued out returnable in the same court. The defendants filed in the court of common pleas a certiorari to remove the cause into this court, and a motion was now made to quash the writ. for the people, insisted that the scire facias sued out in this case was but a continuation of the original suit, and inasmuch as…
1Opinion of the Court
By the Court,
Nelson, Ch. J.
It is true that a new warrant of attorney is necessary to the bringing of a scire facias to revive a judgment, 2 Tidd’s Pr. 983 ; 7 T. R. 337; Bing, on Ex. 126, n. (y;) 6 Johns. R. 108; but it is nevertheless for many purposes regarded as the continuation of the former suit. Ibid, and 2 Saund. 71, a, n. 4. Indeed, it is so decided in several cases ; 1 T. R. 388; 6 id. 282, 366. Upon a recognizance it is an original proceeding. *634Tidd’s Pr. 983. The writ must be sued out of the same court where the judgment was given, if the record remain there; or if it has been…
2Cited by1 opinion
- Brockway v. JewettNew York Supreme Court · 1853