Jackson, ex dem. Eden, against Rathbone

Jackson, ex dem. Eden, against Rathbone. For the facts out of which the present question grew, see 2 Cowen’s Rep. 602, S. C. On referring the costs for taxalion, as there mentioned, (page 604) Judge Irving refused to tax a new record of judgment upon the return of the writ of inquiry, and the services about entering and perfecting a new judgment; but he allowed the appropriate services for . . , , . . , , r „ . „ , continuing down the original record remitted trom the Court of Errors, with a history of the proceedings. quiry under ttie 0-3) judgment on^i-ov/and. the record being remitted, a new judgment i-eocr'd is not the proceedings may be continued at the foot of the .ei to be done, aratebe°paper¡ an(1 attached. to record, as to as^ignm* breaches, foties quo* jy„^,alte bond to perform covenants, or court, „n motion, to be continued’&c' A. Burr, moved for a re-taxation, on this ground, among ' ' < i r ©thers. He said the statute, (1 R. L. 144, s. 3) speaks ot inquiry, judgment, and award of execution, for damages, with costs of suit. If no rule for judgment, and no record, there is no authority to “ award execution for the damages and costs of suit.” v. H. RugglcS) contra, insisted that there was no need ot a new record. It was sufficient to continue tbé proceedings upon the old one. Burr, said the statute evidently contemplated a new judgment, independent of, and distinct from the first, and, therefore, authorized a new record. This might as well be denied of a scire facias, or debt on judgment. The original record, when filed, is beyond the control of the attorney. It can be altered by the Clerk, only, under the direction of <he Court. The new judgment should be docketed. There is no authority for this, unless there be a new record signed and filed. [MAJORITY — Curia.] Curia. A new record was unnecessary. The proceeding by inquiry might have been continued upon the record remitted from the Court of Errors ; and Woodworth, J said this did not mean taking the record from the Clerk, and continuing the history upon that. All that is necessary isa to make the proper suggestion, and give a history of the subsequent proceedings upon separate paper, and attach this to the original roll, as is done when you assign new breaches, toties quoties, on the record of judgment upon a bond for the performance of covenants. And Sutherland, J. said, that if it were otherwise, that would be ho argument in favour of a new record ; for this Court, on application, would grant leave, of course, to continue the original record in the hands of the Clerk, provided it were necessary. Motion denied.