Van Antwerp v. Newman

4 Cow. 82

Opinion

Curia.

The mere delay, in this case is not a sufficient ground for our allowing execution to go.

It is not necessary that a writ of error should be allowed by a Judge. It is a writ of right; and the proper officer is bound to issue it, of course, on the application of the party. The English books speak much of allowing a writ of error, but this does not mean a judicial act. There the writ is delivered to the Clerk of the Errors, who enters its receipt, whereupon the party takes of him a note or certificate that he has allowed the writ.

Footnotes

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(c) This is what the books mean when they speak of allowance. With us, the English idea of allowance of the writ is seldom complied with, beyond the receipt of it by the Clerk of the Court to which it is directed, (d) The filing it with him, and his entering the receipt of it, is an allowance, and stays execution, if bail be in.

As to the recognizance, the party here drew a bond, with an adequate penalty, and a proper condition. With this he goes to a Judge, in whose presence it is executed. The Judge witnesses it, and certifies, substantially, that it was acknowledged in his presence. The proceeding was somewhat informal. The instrument is not technically worded ; but it was a virtual compliance with the act. The words, “ signed, sealed and delivered, in the presence of” the Judge, is equivalent to saying that it was acknow lodged before him. It, was, in fact, so acknowledged. It was the act of the party and his bail. It is a sufficient warrant for drawing up a regular recognizance roll; and we think it fully available to the plaintiff, should he find it necessary to resort to it by action.

Motion denied.

Vid. 1 Archb. Pr. 218 ; and for note of allowance, Tidd’s Forma, 515, s. 13. Id. Albany ed. 1803 p. 208.

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In noto to Gravall v. Stimpson, (1 B. & P. 479, n. a.) the allowance of a writ of error is defined to be, its delivery to the Clerk of the Errors; and Mcriton v. Stevens, (Bam. 205,) and Sykes v. Dawson, (id. 209,) support that definition. Vid. also, Payne v. Whaley, (2 B. & P. 137.)