Lavett v. People — 7 Cow. 339

Majority

p. 338-1

*Lavett against The People. Eggleston against The Same.

NEW YORK,

May, 1827.

Headnote

A writ of error, at the suit of a citizen, in criminal cases, though not capital, cannot issue without the flat of the attorney general.

But should he refuse his fiat, in a proper case for error, the supreme court will order him to grant it. A writ of error will not, per se, stay execution in a criminal cause. Per Biker, recorder. See note (a.) But the court below will, on motion, stay execution till judgment be given on the writ of error. Id. note («).

IN these causes, motions were made in behalf of the people, to cj~uash the writs of error, for irregularity.^[1]

p. 340

*H. Maxwell, for the motion.

E. Bennett, contra.

The plaintiff in the first cause, has been convicted of an assault and battery; and

p. 341

«the plaintiff in the second cause, of grand larceny. They se-vera]2yj su.ed out writs of error, without the fiat of the attorney general, or the allowance of a judge. In both cases¡ the defendants move to quash the writs of error.

p. 342

*Till the 3d of Queen Ann, a writ of error, in any criminal case, was held to be merely ex gratia ; but in that year, on the discussion of the Aylesbury case, (2 Salk. 503,) a new question was started, and referred to the judges; whe

p. 343

ther the queen ought H to allow a writ of error in *any . . , case, ex debito justitice or ex mera gratia. Ten of the judges held that it must be granted ex débito justitice, in

all cases except treason or felony. Lord Mansfield says, (4 Burr. 2550,) the ten did not mean that it was a writ of course; but that where there was a probable error, it ought not to be denied. He adds, “ It cannot issue now, without a fiat from the attorney general, who always examines whether it be sought merely for delay, or upon a probable error.”

Our statute, (1 R. L. 143,) enacts, that writs of error, in all civil cases, and in criminal cases not capital, shall be considered as writs of right; and issue of course; subject to the regulations prescribed by law: and in all capital cases, writs of error shall be considered as writs of grace; and shall not issue but by order of the chancellor, made upon motion or petition, notice whereof shall be given to the attorney general, or the prosecutor for the people.

In these cases, writs of error are writs of right, as distinguished from writs of grace. And they issue of course,

p. 344

*subjeet to the regulations prescribed by law; that is, sub jeot to the established practice. That practice is to obtain the fiat of the attorney general. ( 3 Chit. Cr. Law, 369 .) Shouid the attorney general refuse hisfiat, in a proper case, this court would order him to grant it. (4 Burr. 2551.)

These writs of error have issued irregularly; and must he quashed.

Buie accordingly.