Frary v. Dakin

8 Johns. 353

• Court: New York Supreme Court
• Decided: August 15, 1811
• Status: Published

Opinion

Per Curiara.

This is not a case coming within the spirit of the 14th rule of January term, 1/99. That rule contemplates a suit originating in this court. The' plaintiff in error came to this court, not to enforce, a demand, but to avoid a judgment which he supposed had been erroneously given in the court below. Although the bringing a writ of error js considered as a new action, yet it is not the commencement of such a suit as comes witfiin the ride by which the attorney can be made responsible for the costs. It never has been supposed that in a, case like this, a non-resident plaintiff was obliged to file a bond; and it ¡s qply when a bond ought to have been filed, that the attorney is answerable for the costs. If there had been an application to the court to stay the proceedings on the writ of error, it is probable the proceedings would have been stayed, until security for costs had been given. The motion is denied'