2. In other cas es cause shown. MONROE V. BAKER. Oct. T. 1826. 6 Cowen's N. Y. Rep. 396. We are clear that cause must be shown in all cases Per Cur. where a certiorari is brought to review the proceedings of an in- must be ferior jurisdiction for error. It is never of course, except when it is issued for the people. Vide 2 Caine, 181; 20 Johns. Rep. 84. The court must be petitioned or moved to grant the writ as it is not debito justitia, but discretionary; Commonwealth v. Peters, et al. 2 Mass. Rep. 125. 3. PENNSYLVANIA V. KIRKPATRICK. March T. 1794. Addis. Penn. Rep. 193. for the de Inquisition of a forcible entry and detainer found before a It can only justice of the peace. Certiorari at the prayer of the defendant be granted which was allowed by a single judge in vacation, as of course, fendant on without special cause shown. cause shown, in a ceeding. Held by the Court, that a defendant in a criminal proceeding criminal pro could not obtain a certiorari, but upon cause shown. 4. TRIGG V. BOYCE. 2 Hayw. N. Ca. Rep. 280. S. P. PERKINS And must Held by the Court, that a certiorari for reversal, lies only in cases of special and inferior jurisdictions; that as a substitute be applied for an appeal it ought to be applied for in a reasonable time.. 5. DICKSON V. SEELEY. Aug. T. 1810. 6 Johns. N. Y. Rep. 327. The attorney made an affidavit, on which be applied for a cer verdicts and granting new trials in proceedings before inferior jurisdictions; Rex v. The Inhabitants of the county of Oxford, 13 East. 411. So the court refused it where the offence was confessed; Rex v. Gwyne, 2 Burr. 740. So also after a conviction of a conspiracy; Rex v. Nichols, 6 Mod. 62. And on a conviction of extortion, the court said the defendant should bring error on the judgment and not move the record by certiorari between conviction and judgment; Rex v. Jackson, 6 T. Rep. 145. Judgment for the non repair of a bridge, the court refused the certiorari and observed that the ordinary course was to bring a writ of error; Rex v. The Inhabitants of Seton, 7 T. Rep. 373. Nor does it lie pending an appeal; Rex v. Sparrow, 2 T. Rep. 196; n. The application for, should be made before issue joined, 4 Black. Com. 321. And the court will not grant it after conviction and judgment; Rex v. The inhabitants of Benegoes, &c. 1 B. & L. 144. And the court will not grant a certiorari pending an appeal; Rex v. Sparrow, 2 T. Rep. 196; cited. for in a rea sonable time.. Supplemen tary proof will be re ceived. The allega affidavit on is founded controvert tiorari, which was refused, he then made a supplementary affidavit after the expiration of 30 days, stating the reason why the first affidavit was not made by the party himself, he being absent from the state. The certiorari was allowed, and now a motion was made to set aside the allowance. Per Cur. The motion must be denied. Though every thing relating to the merits, or the errors in the court below must be contained in the affidavit, which the statute requires to be made within 30 days after the judgment, yet a supplementary affidavit which is merely explanatory of a collateral fact, as in this case of the absence of the party, may be made after the thirty days. 6. COMMISSIONERS OF HIGHWAYS OF WARWICK V. THE JUDGES Held by the Court, that on an application for a certiorari in tions in an open court to bring up an adjudication relative to a road, the which the allegations in the affidavit, on which the application is founded, application could not be controverted by the party in whose favour the decannot be cision was made, and could only be heard on questions of law. ed by a par Contra in North Carolina, where the Court held that affidavits ty in whose may be read to support that on which the certiorari was granted Ledbetter v. Lofton, 1 Murphy, 184. as well as to contradict that of the defendant. And the plaintiff in certiorari may file affidavits after those of the defendants have been filed, either to confirm those, upon which the certiorari was obtained, or to disprove those filed by the defendant; Vevell v. Tenler, 1 Murphy's Rep. 438. favour the decision is made. Whengrant 7. THE PEOPLE V. RUNKLE, ET AL. Aug. T. 1810. 6 Johns. N. Y. Indictment for a forcible entry and detainer. Motion to quash able of the certiorari on the ground that it was granted without special course. cause. Per Cur. The granting the certiorari to remove the proceedings, is as much a matter of course, as the granting of a habeas curpus. Where the right to the possession of land is in question, the party has a right to have it tried in this court. Motion denied. (E) OPERATION AND EFFECT OF.* 1. CASE V. SHEPARD. Oct. T. 1800. 2 Johns. N. Y. Cas. 27. S. tiorari ope After the certiorari was delivered to the justice he proceeded Te de Ive to try the indictment under the act to prevent forcible entries yo acer and detainers, and the defendant being found guilty issued a rates as a su writ of restitution, by which the defendant was turned out of persedeas. possession, the court held that the delivery of the certiorari to the justice, superseded his powers, and rendered all subsequent proceedings before him void. 2. BLANCHARD V. MYERS. Jan. T. 1812. 9 Johns. N. Y. Rep. 66. cution has Per Cur. A certiorari allowed after execution begun to be But not af executed by the constable is no supersedeas to the execution. ter an exe The same rule applies to cases arising under justice's judgments begun to be and executions, which exists as to other courts, when a regular executed. writ of error after the sheriff has levied under a fi. fa. is no supersedeas to it. 3. GARDNER V. MURRAY. Sept. T. 1807. 4 Yate's Penn. Rep. 560. Held by the Court, that after a certiorari has been read and allowed, there can be no further proceedings in the court below Until the * A certiorari removes all proceedings which have taken place between the test and the return of the writ; Rex v. Battams, 1 East. 292; Smith v. Cross, 7 Mod. 138. But a certiorari operates only as a discharge from the time it is served, and not from the issuing of it; 5 Petersdorff's Abr. p. 261, n. Sir Godfrey Kneller's case, 1 Salk. 151. But where the cxecution is sued out on the judgment before the issuing of the certiorari it is not a supersedeas; Rex v. Nash, 1 Salk. 147. Per Cur.It shall be a rule for the future, that on the moving of indictments by certiorari we will not hear a motion in arrest of judgment until the defendant has appeared; 7.Mod. Rep. 39. The court granted an attachment against the mayor for proceeding after a certiorari had been delivered to him;"The Queen v. The Mayor of Carlisle, 7 Mod. 38. And in Smith et al. v. The Commissioners of Sewers, 1 Mod. 44, the commissioners were brought into court by attachment, because they proceeded to fine a person after a certiorari had been delivered. And if the indictment be removed by ceriiorari after issue, and afterwards remanded the inferior courts may proceed to trial in the same way as if the writ had never been awarded, 2 Hawk. P. C. 27. If the writ of certiorari be not delivered before the jury are sworn to try the issue, the justices may proceed; ibid. s. 59. VOL. III. 17 suit is re manded. A certiorari merely re record. until the suit is recularly remenic 1. Tide 4 Dall. where the court held that the certiorario, cited as a supersedeas, under the acts of assembly relating to forcible entries and detainer. 4. NICHOLS V. WILLIAMS, Oct. T. 1827. 8 Cowen's N. Y. Rep. 13. Held by the court, Savage, C. J., that a certiorari never brings moves the up the testimony given before the tribunal to which it is di rected, except when it goes to a justice's court. It merely removes the record without the testimony. And see Nicholas v. Williams, S Cowen, p. 13. The record only is sent up, Wolfe v Horton, 3 Caine's Rep. 6. And does 5. EX PARTE VERMILYEA, ET AL. Oct. T. 1826, Supreme Court Per Cur. Woodworth, J. The defendants were convicted at not bring up a court of Oyer and Terminer, held in the city of New-York, of the evi dence. And is bro't up in the same condi tion it stood below. a conspiracy to defraud certain incorporated companies, and individuals of their goods chattels and effects. Application is now made for the allowance of a certiorari, to remove the record and proceedings into the supreme cout, for the purpose of reviewing the decision of the court below, on a challenge taken to some of the jurors, and also on the ground of a fatal variance between the proof offered at the trial and the charges contained in the indictment. As to the latter I will merely observe, that a certiorari moves the record only, and as the evidence produced upon the trial forms no part of the record, the writ would be a nugatory process. The remedy does not apply to reach the error sought to be corrected. 6. BLAKE V. HALL, Oct. T. 1825. 5 Cowen's N. Y. Rep. 37. S. P.. Certiorari to the C. P. New-York after the plaintiff had declared. Fer Cur. A certiorari is in the nature of a writ of error, and in the court removes in contemplation of law the record itself. It follows that the cause is here, on the return. of the certiorari, in the same situation as to the appearance of the parties, and other incidents as it stood in the court below. And it proceeds here directly from the point at which it stopped below. Vide Nicholas ads.The State, 2 Southard Rep. 543. 7. THE PEOPLE V. JEWETT, Oct. T, 1829. 3 Wond. N. Y. Rep. 213. granting. And it ope Per Cur. Savage, C. J. The motion was urged on the ground rates from of the certiorari being directed to the Oyer and Terminer instead of the time of the general sessions of Monroe. When the certiorari was allowed, the indictment was in the sessions; when it was served it was in the Oyer and Terminer in pursuance of order previously made by the sessions. Being there the certiorari operated upon it, and produced the result intended by it, to wit; the removal of the indictment into this court. There is therefore no reason to quash the indictment. Vide Lambert v. The People, 7 Cowen 103; where the court held that the certiorari may be served by delivering it to the clerk of the court below, in vacation who may return it immediately, though it be directed to the court. Vide The Commonwealth v. Winthroop, 10 Mass. Rep. 177; where the court held, that where the certiorari issued to the common pleas as the successor to the sessions, after the power of the sessions had been restored to them, the writ was improvidently issued, and they quashed it. (F) RETURN OF, &c.* 1. THE PEOPLE V. VERMILYEA. May T. 1827. 7 Cowen's N. Y. Rep. 108. The court Held by the Court, Woodworth, J. that they would not notice facts improperly returned upon certiorari. The same point was will not no decided in Lawton v. Commissioners of Cambridge, 2 Caine's Rep. 179. *The return must certify the record and not the tenor of it. The King v. Inhabitants of Stow Borden, Cas. Temp. Haid. 173; Bex. v. The Parish of St. Mary Devises, 1 Salk. 147. Where the return omitted to state the presentment of the bill the court held it bad; Rex v. Barry, Carth. 22. And wherever the purport of a certiorari is not to proceed on the record to be removed, but only to try an issue of nul tiel record, it is sufficient to certify the tenor of the record, whatever the words of the writ may require; 5 Petersdorff's Abr. 265. n. The proper mode of making the return, seems to be to endorse on the back of a writ, "the execution of the writ appears in a certain schedule hereunto annexed," and then to send the schedule on a distinct piece of parchment, annexed to the record of the indictment, and transmit them together to the superior jurisdiction; ibid. p. 267. It must be made by the party to whom it is directed; Ashley's case, 2 Salk. 479. But it may be directed to divers justices, and may be returned by one; Rex v. Grisley, Comb. 25. tice facts im properly ro turned. |