Perry v. Benner , 1 Morris 340 ( 1844 )

Per Curiam,

Mason, Chief Justice.

The only question presented by this case is, whether in case of a writ of certiorari, issued in pursuance of the act of January 14, 1840, if the bond is substantially defective, such defect may be supplied in the District Court so as to preserve the writ from being quashed. The certiorari authorized by that act, is only another mode of taking an appeal. The only substantial difference being, that in the one case the party has seven, in the other, thirty days within which to appeal. In the case of an appeal proper, the statute expressly gives the right to correct a defective bond ; in relation to a certiorari, no such provision is contained. If the legislature had desired to give the same right of amendment in the latter as in the former case, they might easily have so declared. It is hardly expedient to strain the law in order to enlarge the opportunity to obtain a second jury trial. As the case stooql when this writ was issued, the party has an opportunity for a jury trial in the justice’s court. If dissatisfied he can appeal within seven days, and in case his appeal bond is defective it can be amended in the District Court. If he allows this lime to pass, he may within thirty days from the time of trial bring the case up to the District Court for a full hearing before a jury. But in this case the law requires as a prerequisite, the filing of a sufficient bond, and makes no mention of the power to amend. We do not think it necessary to go beyond the letter of the law in this particular. The facility for appeal has already grown to be an evil.

A certiorari, as elsewhere generally understood, is nearly equivalent to a writ of error. It merely brings op the case from the justice’s court to enquire into and correct errors of law. Such a writ should be favored in the higher courts. The authorities cited by the counsel for plaintiffs in error, were, we think, all in cases of writs of this nature, and therefore not applicable to the case at bar, for the reason above stated. We think the ruling of the court below was correct.

Judgment affirmed.