¶1The Chief Justice made an order accordingly staying all further proceedings on the judgment against the defendants in error, on their paying Bolton his taxable costs.
¶2To reverse this order, Robert sued out a writ of error, removing the record and subsequent proceedings into the Court of Errors.. When the argument of the cause was called on, the' defendants in error objected that the court ought not to entertain the writ of error in this case but should quash it, on the ground that a writ of error will not lie upon a mere order of a court, like the present; that a record should have been made up and filed, upon leave, as if an audita querela had been sued out by the insurance company, and'judgment had been rendered in their favor: and the Case of Negus, 10 Wend. 34, was cited. The court took time for advisement, and refused to quash the writ of error, and directed the argument to proceed; after which, the opinion of a majority of the court was delivered by Senator Edwards.
¶3He says: “ The judgment was in the name of Robert, and the payment of the mortgage brought back to him the whole interest in the judgment as effectually as it could have been by an assignment, even had that payment been voluntary on the part of Robert; but the payment was not voluntary; he was compelled to advance the money and he had therefore _ a right to be substituted in the place of Bolton. Nor is he to *295be deprived of this benefit on account of having subsequently obtained another policy on the same property, and not having given notice thereof while the policies in question were in the hands of Bolton as assignee.” “ He was not the owner of the policies when he effected the second policy, and therefore was under no obligation to give notice thereof. The Supreme Court have decided that the omission to give notice was not a good defence; that judgment has been acquiesced in by both parties.”
¶4The order of the Supreme Court staying proceedings, &c. was thereupon reversed, 13 to 6.