In re Walker

2 Duer 655

• Court: The Superior Court of New York City
• Decided: July 29, 1853
• Status: Published

Opinion

This was a petition by a debtor, to be discharged from his imprisonment, under the provisions of art. vi., tit. 1, chap. 5, of the 2d part of the Revised Statutes. The petition had been presented to the chief justice at chambers, who had refused to entertain it.

The judges were all of opinion, that the judge at chambers had no jurisdiction, and that the words of the statute, and especially of §§ 6 and 9 (2 R. S. 2d ed. p. 690), could only be satisfied by holding, that the application must be made to the court at a regular term. They were also of opinion, and so decided, that the petition must, in the first instance, be presented at a regalar special term, it being the plain intention of' the Code that the court, at general term, should exercise only an appellate jurisdiction, and this being also the construction which the court had uniformly given to its own rules (Rules of 1853, rule 2). The only exceptions were those created by § 265 of the Code, as last amended.