People ex rel. Clarke v. Commissioners of Highways
New York Supreme Court
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.
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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
- Patchin v. Mayor of BrooklynNew York Supreme Court · 1835
- Smith v. KingsleyNew York Supreme Court · 1838
- Craig v. ScottNew York Supreme Court · 1828
3Cited by1 opinion
- In re PyeAppellate Division of the Supreme Court of the State of New York · 1897