Arrington v. Howell , 4 Port. 317 ( 1837 )

GOLDTHWAITE, J.

— These affidavits certainly present a strong case, and if the Court could exercise a discretion, it would be inclined to deny the motion; or, having possession of the certificate, to award a certiorari, to complete the record. But the statute seems to be imperative. -It is to be.found in Aikin’s Digest,^* and provides that the citation, with a transcript of the record in the cause, shall be delivered to the party applying for the writ of error, or his, her, or their attorney, to bo, by him or them, returned to the nest term of the Supreme Court;” and if the record is not filed on or before the third day of the Court, it shall be lawful for the Court, on the production of the citation served, or a proper certificate, to render a judgment of affirmance — “ unless the plaintiff" in error, or some other person, shall make affidavit, that the transcript of the record could not be procuredfrom the clerk."

The affidavits submitted in this cause, seem to admit that the record is ready, awaiting an application for it. The Court does not wish to be understood as deciding, that application in person would be necessary — but, that it must be shewn, that the record could not be obtained from the clerk; after using ordinary diligence. Nor is it supposed by the Court, that its recognition of the strict rule imposed by the statute, can be productive of hardship, as if can always grant the necessary relief, where it can be shewn, that the record can not be procured; or when it shall be produced at a subsequent day,in term.

Motion granted.

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