Overseers of the Poor v. Sutton ( 1867 )

The opinion of the court was delivered by

Elmer, J.

This is a bastardy case, in which a certiorari was allowed by a justice of this court, at his chambers, before the late act authorizing such writs in all cases, and without the recognizance prescribed by the fourth section of the act to regulate the issuing of writs of certiorari. Nix. Dig. 93.^*

We are of opinion that the writ was of such a character that it might properly have been allowed by a justice out of court; but we think lie ought to have required a recognizance. Inasmuch, however, as the practice in' this matter appears to have heretofore been unsettled,-we think it best to decline quashing the writ for this defect, provided the prosecutor shall enter into a proper recognizance, and cause the same to be filed within sixty days. It must be understood that hereafter writs of certiorari, in bastardy cases, are not to be allowed, unless the prosecutor enters into a recognizance, with sufficient securities, as required by the statute.

Motion denied.

* Rev., p. 98, § 7