Amend ment of. Nor will they exam merits of the case. 2. HOUSEWORTH V. SUGDAM. May T. 1827. 7 Cowen's N. Y. Rep. 106. S. P. DURANDO V. MOONEY. 1 Cowen, 588; HUNTINGTON V. GOODWIN. 2 Cowen, 521; KNAPP V. PALMER. 1 Caine's N. Y. Rep. 486. Motion to amend the return to a certiorari. Per Cur. We require the return and affidavit, or copies, to be produced on the agreement, to the end that we may determine, by comparing them, how far the amendments sought for by the motion are unnessary. 3. NIGHTINGALE, PETITIONER. March T. 1831. 11 Pickg. Mass. Wilde, J. The petitioner was prosecuted in the Police Court, ine into the of the city of Boston, for a violation of the city ordinances for the regulation of the market, passed Nov. 13, 1826, and was tried and convicted of the offence charged; and on an appeal to the Municipal Court, he was again tried and convicted of the same offence in that court. He now petitions for a writ of certiorari to the Municipal Court, suggesting divers errors in the proceedings; and the general question is, whether, for any of the reasons assigned, a writ of certiorari ought to issue. An objection to the proceeding, is, that there was not suffi cient evidence that the petitioner had violated the ordinance. This objection, we think, is not open to the petitioner on this application. We cannot, on certiorari, examine the merits of a case, and set aside a verdict as against evidence. If there is no error in the proceedings, the judgment of the court below on hearing, will be affirmed; for this cause therefore a certiorari ought not to issue. Or controul 4. INDEPENDENCE V. POMPTON. Sept. T. 1827. 4 Halst. N. J. Rep. 209. S. P. BALDWIN V. SIMMONS. 4 Halst. Rep. 196. Per Cur. Ewing, C. J. It is a clear and well settled rule, the inferior that this court on certiorari in settlement cases, has no jurisdictheir adjudi tion or controul over the sessions in matters of fact, or of the tribunal in cation of facts. credibility of witnesses. OVERSEERS OF 5. BROOKHAVEN V. OVERSEERS OF SOUTHOLD. Certiorari to the General Sessions of Suffolk County. 6. Practice on certiorari in N. Jersey. return is de COM'TH V. THE INHABITANTS OF NEW MILFORD. 4 Mass. Rep. 446; THATCHER, ET AL. V. MILLER. 11 Mass. Rep. 413. Certiorari to the Court of Sessions, commanding them to cer- Where the tify the proceedings before them in relation to the alteration of fective dimi a highway. The proceedings certified contained no record of nution may the proceedings or assessment of damages except what was reci- on a new ted in the petition. Per Cur. Parsons, C. J. If the certiorari had directed all the proceedings to be certified, and the certificate had been defective, diminution might have been alleged, and a new certiorari have been issued. On certiorari the Court cannot travel out of the record; Wood, et al. v. Talman, et al. Cox, 153. They may decide upon. the legality of the certiorari, the inferior court must obey; State v. Hunt, Cox's Rep. 287. 7. RAWSON V. ADAMS. Oct. T. 1819. 17 Johns. N. Y. Rep. 130. be alleged certiorari issued. But the re turn is con facts stated. Held by the Court, Platt, J. that a return to a certiorari, to a He may be clusive as to justice's court, is conclusive as to the facts stated. required to return the evidence, but not the couduct of the jury, nor a notice of special matter that might have been given in ev idence under the the general issue. Vide Keeler v. Adams, 3 Caine's Rep. 84. 8. Fox v. JOHNSON. August T. 1824. 3 Cowen's N. Y. Rep. 20. S. Certiorari to a justice's court. But if drawn by the attor ney it will Motion to set aside the return to the certiorari on the ground be set aside. On the re turn of the writ part of that one of the attorneys of the plaintiffs in error drew the re turn. Per Cur. We are all clearly in favour of the motion. But in the case of Philips v. Caswell, 4 Cowen, Rep. 505, the Court held that where the attorney acted on the mere amanuensis of the justice, they would not set aside the return. Vide Hunter v. Graves, 4 Cowen, 537. (G) QUASHING OF.* 1. COMMONWEALTH V. THE BLUE HILL TURNPIKE CORPORA- Certiorari to the court of sessions in relation to locating the the proceed Blue Hill Turnpike, and assessing damages to the owner of land, over which the turnpike passed. ings may be quashed and part af firmed. The assessment was made and the court ordered the amount to be paid within six months, or that a warrant of distress be levied on the personal property of the proprietors. It was objected that the order of the warrant of distress was void, because the corporation in its corporate capacity, is alone liable for the payment, and not the personal property of the corporators. And the question was whether it was competent to the court to quash that part of the order which related to the warrant of distress, and affirm the residue. Per Cur. Parsons, C. J. We are satisfied that there are cases upon certiorari, where the court may quash part of the proceedings of an inferior court, and affirm part. These proceedings may be considered as in issuing orders, passed in civil causes. In a civil cause the order may consist of several distinct and independent parts, and each may be considered as a *Where the writ is improperly granted, as where it is served after judgment the court will quash it; Rex v. Seton, 7 T. Rep. 373; Rex v. Dixon, 6 Mod. 62. But it is not for the party to urge the irregularity for disobeying it, the court only which issued the process has power to recal it; 1 East. 393. On the return of the certiorari the court have acquired a jurisdiction over the costs incurred below and the costs of the application for the writ, and on quashing it will order either party to pay them as the justice of the case requires; Jones v. Davis, 1 B. & C. 143; Zink v, Langdon, 3 Doug 749. Where there is an error in the return whereby the record is not removed; Rex v. Corson, 3 D. & R. 36. Or where there is a variance between the writ and in indictment; Anon. 3 Salk. 80. separate order, complete in itself. Thus in a pauper cause, an order to remove three different persons may be considered as three orders. And if either order is illegal, it may be quashed, and the others affirmed. But where the several parts of the proceedings are connected together, and depend on each other," there the whole must be quashed, and not a part; Commonwealth v. Carpenter, 3 Mass. Rep. 268. 2. COOK V. REINHART, ET AL. May T. 1829. 1 Rawle's Penn. Rep. 317. quash the Certiorari to the Common Pleas of Lancaster county, to re- It is discre move proceedings which had taken place under the act of the tionary to 6th April, 1802, to recover possession of land sold by the sher- writ or not. iff before two Aldermen of the city of Lancaster, and had been removed to the common pleas by certiorari. A motion was now made to quash thewrit, on the ground that the certiorari was not the proper remedy. Per Cur. Gibson, C. J. Had the motion to quash, been made in time, it must have prevailed, for it is certain that a writ of error is the proper remedy in a case like the present. To quash, however, is not of right, but by favor of the court; and a motion to that effect comes with an ill grace, after the delay of two terms. The certiorari is a writ of error in respect of every thing. but form; and as the record is actually certified, there is enough of substance in the writ to enable us to proceed. Vide The State v. Kirby, 2 Southard's Rep. 835. 3. COMMONWEALTH V. ELLIS. October Term, 1814. 11 Mass. Rep. 465. S. P. MELVIN, ET AL. v. BRIDGF. 3 Mass. Rep. 305; EDGAR v. DODGE. 4 Mass. Rep. 670; DROWNE V. SIMPSON. 2 Mass. Rep. 445. must either quash the Held by the Court, Jackson, J., that on certiorari, they could The court not render such a judgment as ought to have been rendered in affirm or the court below—that they could only affirm the proceedings, if proceedings found regular, or quash them if they had exceeded their jurisdiction, or had proceeded contrary to the statute. 4. STATE V. WOODWARD. Feb. T. 1827. 4 Halst. N. J. Rep. 21. Matters shown by a party inter ested, which would have prevented the allow Per Cur. Ewing, C. J. Certain principles applicable to this subject are well settled. The allowance of a writ of certiorari ance of the in cases of this kind is in the discretion of the court; Cox, 250; writ, on the Penn. 1026; 1 South. 389. On the return of the writ, if such writ it will matters, other than those properly inquirable into by the writ, are be quashed shown to the court by a party whose rights and interests are af return of the fected, as would, if shown at the moment of application, have induced the court to refuse the allowance, the writ will be quashed. This rule results from the fact that the allowance is made ex parte, and without notice; thus for example, want of jurisdiction to issue the writ, may be shown on a motion to quash; but the court would not on such motion, sustain an attempt to show that the reason assigned for the allowance, or that other reasons, if such there were, on which reliance was placed to annul the proceeding to be inquired of by the writ, were untrue in fact or ineffectual in law. (H) REMANDING ON.* 1. Practice on THE PEOPLE V. TOWNSEND. April T. 1799. Coleman's N. Y. Cas. 68. remanding., It was held by the Court, that if proceedings in a criminal case, are removed from the Oyer and Terminer by certiorari, and filed in the supreme court, the case cannot be sent back, but must be tried in the supreme court by a jury of the vicinage, or sent down to the circuit for trial, if the case be not capital ; but if the proceedings be not filed, and the court award a new trial, the cause must be sent back. In Massa chusetts. 2. BALL V. BRIGHAM. Sept. T. 1809. 5 Mass. Rep. 406. S. P.* Error to a justice to remove proceedings under the militia law for a fine for neglect of duty. Per Cur. We have often declared that error does not lie in a case of this kind; but that the remedy of the party aggrieved must be sought by moving the court for a writ of certiorari. In several cases where the distinction between error and certiorari *Remanding an indictment removed after issue, the inferior court may proceed to trial in the same way as if the writ had never been awarded, 2 Hawk. P. C. 27 s. 61. |