Anonymous ( 1807 )

Pennington, J.

— You must show the justice in fault, before you will be entitled to that rule. He said, that he apprehended that there was a mistaken notion prevailing, as to the duty of the justice in this respect; some attornies appeared to think, that they had nothing to do but to deliver the certiorari to the justice, and that he was bound to return it to the Court. This, he said, was a mistake; the party taking out the writ, must not only deliver it to the justice, but give him a reasonable time to transcribe his record, and prepare the return, and then call for the writ and return, and bring or send it to court himself. If the justice, on reasonable time given him, does not transcribe his record and prepare the return, on affidavit of the default made, the Court will grant the rule; and he apprehended it was the same in the case of rules on [*] the justice, in cases of diminution alleged, to perfect or amend their returns. This appealed to be the unanimous opinion of the Court, as to the proper practice in such cases, and

Kirkpatrick, C. J.

— Said,that lie wished the bar to take notice of it, that it was unreasonable to compel the justice to come to Court; or even to send a messenger with the return. That the most the Court would do before the delinquency of the justice wras made out by affidavit, would be to order, or continue a rule on the justice to make or perfect the return; leaving out the clause respecting the attachment — and it might be questionable even whether it was proper to do that.

Rule refused, but the rule continued for the return of the writ without the attachment clause.