SECTION II. OF THE ISSUING AND RETURN OF THE WRIT OF ERROR, AND OF THE From what court writ issues. Direction of writ from rors. Formerly, a writ of error, returnable in the court of errors, issued out of chancery; but now, it is provided by statute, that writs of error, in all cases, "shall issue of course out of the court into which they may, by law, be made returnable, in vacation, as well as in term, subject to the regulations prescribed by law."27 Writs of error, issued out of the court for the correction of court of er- errors, must be directed to the justices of the supreme court, commanding them to cause a transcript of the record of the judgment, or final determination, upon which such writ shall be brought, and all things concerning the same, to be brought before the president of the senate, the senators, and chancellor." How made returnable. If such writ of error be issued during the sitting of the court, or of the legislature, it must be made returnable immediately, at the place where the court may then be sitting; if issued after a sitting, or term of the court, shall have been adjourned, and before a meeting of the court, it must be made returnable, generally, at the next meeting of the court, wherever the same shall be held.29 The teste of the writ, is the day of suing it out;30 and it must be sealed and signed by the clerk of the court of errors, and tested in the name of the president of the senate.S 31 out of su A writ of error, issuing out of the supreme court, like other Writ issuing process issuing out of that court, may, if issued in term, be preme court. tested on any day in that term, and made returnable on any day in the same term, or in the next term; and, if issued in vacation, may be tested on any day in the preceding term, and be made returnable on any day in the next term. 82 writ; The writ of error, after reciting a suggestion, that error had Purport of intervened in the record and process, and in the giving of judgment in the cause, commands the court below, that if judgment be thereupon given, they send the record and process, with all things touching the same, with the writ, under their seal, to the court in which, and at the time when, the writ is returnable.33 It consists of two parts: first, a certiorari to remove the record; and secondly, a commission to examine it. But in a writ of error, for error in fact, the certiorari part being unnecessary, is omitted, and the writ contains only a commission to examine errors. 35 with record. The writ of error should regularly agree with the record Must agree in the names of the parties, and nature of the action; and therefore, if the parties be misnamed in the writ of error, or it be sued out by one of several parties only, it will not, it seems, be sufficient to stay execution.36 of writ After the writ has been made out and sealed, it must Allowance be presented to some proper officer for his allowance; who, if the requisitions of the statute, herein after mentioned, shall have been complied with, will endorse his allowance on the writ. It is provided by statute, that "writs of error shall be By what allowed as follows: "1. Writs of error to remove judgments from any court of common pleas, or from the superior court of law, for the 32 Ib. T. 3. s. 5. Vol. 2. p. 197. 33 2 Dunlap. Pract. 1135. 34 1 Str. 607. 82. 35 2 Tidd. Pract. 1198. 36 2 Tidd. Pract 1198. 5 Taunt. persons. No bail requisite at common law. Security required by statute. cases. city and county of New York, may be allowed by a justice of the supreme court, or by a clerk of that court, or by any officer authorised to perform the duties of a justice thereof: "2. Writs of error to remove judgments from the supreme court to the court for the correction of errors, may be allowed by the clerk of that court, by the chancellor, by a justice of the supreme court, or by any officer authorised to perform the duties of a justice of the supreme court.' 1137 At common law, no bail in error was required; so that the defendant, by bringing a writ of error, might have delayed the plaintiff of his execution, without giving any security, either for the prosecution of such writ, or for the payment of the debt or damages, recovered by the former judgment, in case it should be affirmed, or the writ of error should be discontinued, or the plaintiff in error nonsuited therein. By a former statute, this evil was partially remedied in this state, and security required in personal actions, and in certain cases in real and mixed actions, where execution was intended to be stayed.39 The following sections, from the revised statutes, require security to be given by bond with sureties in all cases; regulate the amount; prescribe the condition of the bond, and the manner in which execution may be stayed; and, in many respects, essentially alter the former practice: Bonds in all "No writ of error shall be allowed in any case unless the party prosecuting such writ, with two sufficient sureties, or in case of the absence of such party, three sufficient sureties shall become bound to the party against whom such writ of error shall be brought, by a bond, as herein after specified."40 Its penalty in different cases. "The penalty of such bond shall be as follows: "1. If the writ be intended to operate as a stay of execution upon any judgment, for debt, damages, or costs, recovered 37 R. St. P. 3. Ch. 9. T. 3. s. 25. Vol. 2. p. 595. 33 2 Tidd. Pract. 1203. 39 1 R. L. 143. s. 2, 3. 40 R. St. P. 3. Ch. 9. T. 3. s. 26, Vol. 2. p. 595. in any action, the penalty shall be at least double the sum recovered by such judgment: "2. If the writ be intended to stay execution upon a judgment in waste, or in any action for the recovery of land, or the possession thereof, the penalty shall be one hundred and fifty dollars, if the writ be returnable in the supreme court; and, if returnable in the court for the correction of errors, three hundred dollars, and such additional sum as shall be sufficient to indemnify the defendant in error, for the mesne profits of the premises recovered, during the pendency of the writ, and against waste: "3. If the writ be not intended to operate as a stay of execution, the penalty of such bond, if the writ of error be returned in the supreme court, shall be one hundred and fifty dollars; if such writ be returnable in the court for the correction of errors, the penalty shall be three hundred dollars.”’41 "The condition of such bond shall be as follows: Its condition in different "1. If the writ be intended to operate as a stay of execu- cases. tion, upon any judgment, for the recovery of any debt, damages, or costs, such condition shall be, that if the party prosecuting such writ, shall fail to prosecute the same; or, if such writ shall be quashed, or discontinued; or, if the judgment for the reversal of which such writ of error shall have been brought, or any part of such judgment shall be affirmed; then, that such party will pay and satisfy the debt, or damages, and costs, recovered by such judgment, which he shall be liable to pay, or such part of such recovery as shall be affirmed, if a part only be affirmed; and all costs and damages which shall be awarded by the court to which the writ of error shall be returnable, upon the judgment so affirmed: "2. If the writ be intended to stay execution upon a judgment in waste, or for the recovery of land, or the possession thereof, the condition of such bond, in addition to the matters Endorsing order to stay execution. herein before prescribed, shall further provide, that the plaintiff in error shall also pay and satisfy all damages that may be recovered by the defendant in error, for the mesne profits of the premises recovered, or for any waste to be committed thereon, together with the costs of the proceedings, for the recovery of such damages: "3. If the writ be not intended to operate as a stay of execution, the condition of the bond shall be, that, if the party prosecuting such writ shall fail to prosecute the same; or, if such writ be quashed, or discontinued; or, if the judgment on which such writ shall be brought, or any part thereof, be affirmed, that such party will pay the costs, if any, and the damages which shall be awarded by the court to which the writ of error shall be returnable."42 "The party, applying for the allowance of any writ of error, shall state to the officer applied to, whether such writ be intended to operate as a stay of execution, or not; and, if the proper bond be executed, to justify such stay of execution, the officer allowing the writ shall endorse thereon, with his allowance thereof, an order to stay proceedings on the execution upon such judgment, if one shall have been issued, or to stay the issuing of one, if none have been issued, until judgment shall be rendered on such writ of error."43 Effect of or- "If no execution shall have been issued, the service of such der. Certain ca ses excepted. order shall stay the issuing thereof; and, if an execution shall have been issued, and not fully executed, the service of such order shall stay the further execution thereof, at whatever time such order shall have been made or served. But no writ of error shall stay the issuing of an execution, or stay proceedings on an execution issued, unless such order shall have been made and served."44 "Nothing contained in the last five preceding sections shall extend to any writ of error, to be brought by an executor, or 43 Ib. s. 28. p. 596, 13 Tb. s. 29. 44 Ib. s. 30. p. 597. |