The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1852-09-28

shortty show. would issue only out Of the Coumoa
riess The code declares that the writ Of scUs TO-
ct1s - abolished fsco 1887 and this is understood
70 apply TO all Judgments, whether OBJ aned before
VI snce Inc code took effect, unless the scare
IactdS ISSUED before that tins G. How Br. r.
ioo, ana "a l0i) The plaintiff has no no nedy.
sneIe'oio, IN mat way. The action Of the code re-
fefred 70 substitutes another remedy; IL avn
" and tho remedies heretofore obtaiunSIs In thoSs
forms may be obtained by civil actions under
the provisions Of this chapter" (seo l2s This.
Ia cnsptef = OF .ite -, OF the code. That pari-
culsr chapter makes no provision for actions be-
tween private individuals, but only for aotiooa \,
the nane Of tho people, or which are OF q public
character. As the section abolished tho remesIv
which the private citizen NJ vol the pube
bad, by scos fasios, ana declares that tho reme-
dies formerly obtenable by that writ may still De
obtained by civil action, . under the provisions Of
this chspter"--and tao chapter referred to makas
no provision for any action by the ctizen--ths
woros this chapter must refer some other chap
ter than that one If they admit of two meRniogs.
Every act Of the Legislature forms distinct chap
ter in the st OF tho acts of the year in which t u
peaatd The code OF procedure Ia chapter 438 il che
laws Of i3i9, and that chapter does provide . 10
medy by OWL action for tho citizen well the
people, and is, therefore, the chapter referred TO
by seeticn 1928. This bsiDe SO, these plaintiffs
Pleas, against tho defendant, il he resided n
this county, and in that now action have .
new judgment, that execution should issue &C.
oofdng to tho force, form, and effect Of the frSe
judgment; tor by the express terms OF the oodB,
tho remedies heretofore obtainabe bv sctre factos.
may be obtained by civil actions" The full rene-
dy therefore, OF tho old writ with NIL its incdentA
which essential to the paiutIs rights il still
retained, and is still 0btainable By action. IT. In
the ncw action, the plaintiff could not have judE-
nen tnst execution should ssue son tho L,lics
10 tho lancs that che detondan. nad At tho time at
the 0acl<esirg vi tho first judgment, tue plaintiff
wouid Lot have what iha code gives him all ths
u meties heretofore Obtained by ScJs (dclas." IL
Was not denied that the plaintiff eould have such
relief III an action IN tho Common Pleas Thsro
nothing IN tue code, or in any othsr law which
prevents plaintiff from suing, st dis election, in
the Common Piesg. Supreme Court, whether
his action he founded on Judgment or contract,
aad ia sny action the Supreme Court must give tho
tame Llhd o. relief or judgment TINT tho J0mmoa
flcad you'd Do hcuna To give. Bat il is satd,
thet by tho code, and by former ststutos, tho
Substance Of tho execution is prescribed, and
that that il shall direct the sheriff 'to sell the
real property belonging to tho defendant, on the
Gey when the judgmnnt dockcted 10 the
county," (Code, Gee 80, subd , and that tho
judgment hero referred to il the judgment which
most cases that judgment would sasisfy tae me an
ing OF tho law. But the term ''the judgment" in
not necessarily so restricted bat it may include any
judgment which tho law intended should be so en-
forced. 70 separate form of execution is provided
for . Sctte Jacsas, icr that is abolished. Yot the
Judgment ON thUt was for erncutioR 10 issue, M on
the original Judgment; so - SocSsA form Of judcs-
mept Is provided for an action on judgment, but .
.nd execution the same in etct which before could
% obtained by sc1e tacias That general pro vision
must be sowedits full effect, When interpreting the
rert Of The law which ptesrbee the form of tho exo-
luton TO 90 this the words ''the Judgment" in
eo $50 must mean 1.-The Judgment which, by the
,Idcr or judgment Of the Court issuing the az
-cution, is decsrod 20 BIO the judgment, according
20 Tie force form and effect of which execution Is 70
seue Without Ibis construction, no efficient jud9-
nent could be given If tho suit in the court N
' hch The action was brought, or if m action were
brought IN this court OF it's own judg menko.
I would DO inconsistent with the professed object
Il he code which was to give simple mode of
elicf by notion, 70 say TINT it abolished remedy
Which before gave relief, and provided substitute
or 1t it allows to n party an notion, aDd defines
IN action to be proceeding in court of justice,
~ which party prosecus another for the enforco-
nent or protection Of right" 80. These broad
orn.s require the courts 80 TO mould every action.
,nd the proceeding under it, that every right which
parry mas may be enforced projected, if 1t osn
&c done consistently with law and II must general
y be consistent with law, ife legal right exists.
ma tire opposi PARTY he subjected to tho jusis-
aotlo1 OF tue court.
Tn demurrer is overruled, with oosts with liber-
y to dtitldnnt TO aniend on payment Of costs.
Execution to issue from this court.