Legal Opinion

People ex rel. Clarke v. Commissioners of Highways

New York Supreme Court

Decided March 15, 1840PublishedCited by 1 opinion

Motion to stay execution. This court gave judgment against the defendants, on a special verdict, in a mandamus case and they brought error. A motion is now made for a special order to stay execution until the decision of the court for the correction of errors. A bond with sureties has been executed securing the costs in error, and filed with the clerk.

Read the full summary

Motion to stay execution. This court gave judgment against the defendants, on a special verdict, in a mandamus case and they brought error. A motion is now made for a special order to stay execution until the decision of the court for the correction of errors. A bond with sureties has been executed securing the costs in error, and filed with the clerk. But the names of the obligors are not inserted in the penal part; and it concludes with saying that the costs will be paid with instead of without fraud or delay. The bond is in the -penalty of $300, according to 2 R. S. 494, 2nd ed. <§> 27,…

1Opinion of the Court

By the Court,

Co wen, J.

The better opinion I think is, that admitting this writ of error to have been duly allowed, which is not denied, provided the bond be in d.ue form, it operates per se, as a supersedeas, if, as is also agreed, it come within no part of the statute requiring bail as a condition of staying execution. The plain import of the .books which I have consulted seems to be, that, at common law, a writ of error coram vobis stayed execution by its own force; and the various English statutes, which required bail only in certain specified cases, were considered as restrictions upon…

2Cases cited3 opinions

  1. Patchin v. Mayor of BrooklynNew York Supreme Court · 1835
  2. Smith v. KingsleyNew York Supreme Court · 1838
  3. Craig v. ScottNew York Supreme Court · 1828

3Cited by1 opinion

  1. In re PyeAppellate Division of the Supreme Court of the State of New York · 1897

Showing a preview — retrieve the full document via the Exa API.

Powered by the Exa API