Hyperlawhypertext legal databasebeta People v. Judges of Chautauque Common Pleas 1 Wend. 73

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People v. Judges of Chautauque Common Pleas

1 Wend. 73 Court N.Y. Sup. Ct. English

Delivered by Woodworth, J.

Contents

Majority

p. 73
The People, on the relation of N. Hempstead, vs. The Judges of Chautauque Common Pleas.

Headnote

A mandamss ¡«éd to a common pl®as to vacate a rtile allowing a setio^wherTthe first^was issufor anTimunt judgment the
Motion for a mandamus, A fi. fa. having been issued against the relator in the Chautauque common pleas, and returned satisfied in part, and nulla bona for the residue, the 1 , , . . , relator was taken and imprisoned on a ca. sa. Having ohtained the benefit of the liberties, he escaped, and a suit was commenced against the sheriff. In September, 1826, the attorney of the sheriff, by the direction of the relator, gave a cognovit in the suit for the escape, on which judgment was entered, which has since been fully paid. In June, 1827, the plaintiff in the original judgment applied to the common pleas to amend the return on the fi. fa. issued against the relator, by re.ducing the amount certified to be levied, and to give leave to the plaintiff to issue an execution for- $45,55, the fi. fa. having been issued by mistake for that amount less than what the plaintiff was entitled to. The defendant opposed the motion, alleging that he had paid the plaintiff more money than was justly due to him, and that in justice and equity he owed the plaintiff nothing; but not denying the alleged mistake. The motion was continued until the J une term last of the Chautauque common pleas, when the
p. 74
court granted the míe; and an application is now made to this court for a-mandamus to vacate the same.

By the Court,

In accordance with the-liberal principle of amendments which has latterly obtained, and by which the ends of justice are so greatly promoted, the court feel not-disposed to interfere with the exercise of discretion by the common pleas in this case. They do not perceive that the amendment violates- any rule of law; and unless it had been allowed, it is doubtful whether- the plaintiff in the suit below would not have been remediless. The motion for a mandamus is denied.