Burton's Lessee v. Prettyman

Supreme Court of Delaware

Burton's Lessee v. Prettyman

1 Del. Cas. 158, 1797 Del. LEXIS 25

DecidedMarch 13, 1797

StatusPublished

This text of 1 Del. Cas. 158 (Burton's Lessee v. Prettyman) is published on Counsel Stack Legal Research, covering Supreme Court of Delaware primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Burton's Lessee v. Prettyman, 1 Del. Cas. 158, 1797 Del. LEXIS 25 (Del. 1797).

Pincite

Opinion

Per Curiam.

Confine yourself to the question whether an order of the High Court of Errors etc. was not necessary to authorize the issuing of the execution from this Court, for we have knowledge of the rule of the Court of Appeals.

Peery then argued the necessity of such certificate.

Bayard. The case of bail is the only one like this, and there a certificate of no bail is not necessary. Barnes 212.

Wilson. The reason a certificate is not necessary in that case is that each of the statutes require bail to be put in, in the court below; here the information comes from the superior court.

Read, C. J.

This Court is bound by the rule of the Court of Appeals. Our rules ought not in many instances to be like those over the water. The writ of error is no supersedeas unless the proceedings were properly had. No notice from the superior court as such was necessary. The praecipe of the attorney would not have been sufficient to us for the awarding execution, but the party has issued it at his peril, and our officer at a risk; but as it appears to be right, we think the execution ought not to be set aside. Barnes 212 is somewhat similar, for although bail is put in below, yet it is not by the same officer who issues execution. There ought perhaps to have been a certificate. Plaintiff in error ought to have applied for relief to the court above.

Free access — add to your briefcase to read the full text and ask questions with AI

Per Curiam.

Confine yourself to the question whether an order of the High Court of Errors etc. was not necessary to authorize the issuing of the execution from this Court, for we have knowledge of the rule of the Court of Appeals.

Peery then argued the necessity of such certificate.

Bayard. The case of bail is the only one like this, and there a certificate of no bail is not necessary. Barnes 212.

Wilson. The reason a certificate is not necessary in that case is that each of the statutes require bail to be put in, in the court below; here the information comes from the superior court.

Read, C. J.

This Court is bound by the rule of the Court of Appeals. Our rules ought not in many instances to be like those over the water. The writ of error is no supersedeas unless the proceedings were properly had. No notice from the superior court as such was necessary. The praecipe of the attorney would not have been sufficient to us for the awarding execution, but the party has issued it at his peril, and our officer at a risk; but as it appears to be right, we think the execution ought not to be set aside. Barnes 212 is somewhat similar, for although bail is put in below, yet it is not by the same officer who issues execution. There ought perhaps to have been a certificate. Plaintiff in error ought to have applied for relief to the court above.

Cite This Page — Counsel Stack

Bluebook (online)

1 Del. Cas. 158, 1797 Del. LEXIS 25, Counsel Stack Legal Research, https://law.counselstack.com/opinion/burtons-lessee-v-prettyman-del-1797.