Ludlow v. People , 1 Cole. Cas. 34 ( 1794 )

THE defendant was indicted at the oyer and ter - miner in •Queen’s county for a rape, and in the last vacation he obtained from a judge, at his chamber, an allowance of a certiorari to remove the indictment into this court, with a view to have a trial by a foreign! jury. The certiorari was directed to the clerk of the oyer and terminer, and returned by him with the indictment annexed, and the following questions occurring : 1st. Whether a certiorari to remove an indictment for felony could be allowed, otherwise than on motion in open court, and special cause shown ? 2dly. Whether a certiorari to remove an indictment from the oyer and terminer ought not to be directed to and returned by the commissioners instead of the clerk ? 3d!y. If the certiorari in the present case should be received and filed in this court, then how and' where must the trial be ; whether by procedendo to the oyer and terminer, or by nisi prius at the circuit, or at bar; and whether a foreign jury could be awarded in a capital case ? The court permitted the certiorari and return to be lodged only in court for the present, but not as either formally received or filed; the defendant, however, having submitted the affidavit on which he should ground his motion for a foreign jury, to the previous examination of the judges, and they deeming it insufficient, no opinion was, therefore, given on either of the above questions, and the following order was entered in the cause, viz. “ The writ of certiorari issued out of this court, in “ this cause, directed to James Fairlie, clerk of the court of oyer and terminer and general gaol delivet£ ry, in and for the county of Queens, and the return iC of the said James Fairlie to the said writ, being £< read, Ordered, that the said writ and return be not “ received and filed in this court, and that the several “ matters, intended by the said return to- have been u certified and returned to this court, be in the same ££ state in which they were before the said writ issu- “ ed , the said writ and the said return notwithstand-' <£ ing.” The certiorari and return were thereupon entrusted to Mr. Justice Lansing, to be by him put again into the hands of Mr. Fairlie at Albany, where he resided.