Bromagham v. Clapp — 6 Cow. 611

Majority

p. 611

Bromagham against Clapp and others.

ALBANY,

Feb. 1827.

Headnote

In partition. The defendants brought a writ of error from this court, but did not put in bail. There was also a defect in the writ of error ; but the court for the correetion of errors allowed it to be amended, and retained the cause. Before the amendment was allowed, the plaintiff issued two writs of fi. fa. one against Clapp, and one against oioners unknown, for different portions of the costs in partition.

méñtln" parti-^’execution1 ,per »e ,• but bail cessary* A writ of er-pap (rnm a inri rv_

Jas. Edwards, (S. A. Foot, same side,)

now moved to set aside the executions as irregular.

J. V. N. Yates, contra.

By the statute, (1 R. L.512, s. 12,) “error may be brought within the same time, and under the like restrictions and regulations, as in other cases.” This undoubtedly refers to the restrictions and regulations in the previous act “ concerning writs of error,” &c. (1 R. L. 143.). Independent of that act, there is no restriction on the subject. The writ is one of right, and issues of course, in all actions, real, personal and mixéd. That act requires two things on bringing error from this court; the certificate of counsel, and bail. The former is not necessary on error from the common pleas to this court; and had this writ been from a judgment in partition, rendered in the common pleas, there would be nothing, (not even the certificate.) to satisfy the rvords quoted from the staf-

p. 612

ute of partition, except bail. Bail is given in eject» ment and dower. Doubtless, one reason is, because costs follow, always in the former, and often in the latter. The same principle exists in partition. The reason why bail is not generally required on error from judgments in real actions, is, that the demandant does not recover costs. The principle of requiring bail, therefore, concurs with the words of the statute.

But the point is new in practice, and the party proceeded in good faith. Eet the executions, therefore, be set aside, on payment of costs, and putting in and perfecting, bail in error.

Rule accordingly.