Bailey v. Caldwell

3 Johns. 451

• Court: New York Supreme Court
• Decided: August 15, 1808
• Status: Published

Opinion

Per Curiam.

The distinction stated between a judge’s order to stay proceedings, and a certificate of probable cause, has never been made by the judges, who have, in practice, considered them the same, and have used either form indifferently. An order, in the form in which the one was granted in this cause,

(a) has always been considered as having the same effect as a certificate of probable cause, and as requiring the same practice, under the 4th rule of January term, 1799. The attorney of the plaintiff took the inquest in this cause at his peril; and as there is the usual affidavit of merits, and no laches is to be imputed to the defendant, it must, with the subsequent proceedings, be set aside with costs. Let the rule be taken fop that purpose, and that the plaintiffs refund and pay over to the defendant the money received on the execution, with the sheriff’s fees and costs.

Rule granted.

The order was in the following form:

“ C. & C. ) adsm. B. & V. J Let all proceedings in the above cause be stayed until the fourth day in the next August term of this court. May 17th, 1808."