Majority
p. 136Jackson, ex dem. Bleecker, vs. Wiseburn.
Headnote
Neither a commissioner in vacation, nor the court in term time, can enlarge the time within which an act is to be done, when such time is regulated by-statute.Motion to vacate judge’s order. The plaintiff sued out a writ of error from this court to the superior court of the city of New-York, and gave bond with sureties for the prosecution of the same. The defendant excepted to the sufficiency of the sureties. On the last day for justifying, the plaintiff, on an .affidavit of the absence of his sureties from the city, and of their expected return within the course of two weeks, obtained from a judge an order enlarging the time for justifying fifteen days; which order the judge within the fifteen days vacated. From this last order the plaintiff appealed to this court.
J. 0. Grim, for the plaintiff.
J. Edwards, for the defendant.
By the Court,
By the provisions of the revised statutes, a defendant in error has 20 days after notice of a bond executed on the suing out of a writ of error to ex-
p. 137
eept to the sureties; and if such sureties do not justify within ten days after notice of such exceptions served on the plaintiff in error, the writ of error may be superseded by the order of any officer authorized to allow the same. 2 R. S. 597, 8, § 34, 35, 36. It is the ordinary course of the court to enlarge the lime to plead, or other time prescribed for any other purpose.by the rules or practice of the court upon cause shewn; but neither a commissioner in vacation nor the court in term can enlarge the lime within which an act is tobe done, when such time is regulated by statute. The rules and practice of the court being established by the court, may be made to yield to circumstance, to promote the ends of justice. Not so as to a statute; it is unbending, requiring implicit obedience as well from the court as from its suitors. The court possesses no dispensing power, and the judge did right to vacate the order made by him.