Civil Procedure · MBE-tested
Van Patten vs. Ouderkirk
1 Cole. Cas. 118·New York Supreme Court·1800·NY
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Opinion
Van Patten vs. Ouderkirk.
ON Certiorari. Emott in behalf of the Justice, moved to quash the writ, because it required him among other things to return the testimony. It was admitted that no notice had been given the opposite party, but it was contended that none was necessary.
[MAJORITY — Per Curiam.]
Per Curiam.
This writ is the right of the party who takes it out, and the Justice is bound to obey it at his peril. He is not however bound to return any thing but what we can legally require of him, notwithstanding the command expressed in the writ. In this case he ought to return all but the testimony, and to take no notice of that part of the precept which enjoins him to return that.
Motion denied