People v. Schoharie Common Pleas , 1 Wend. 315 ( 1828 )

By the Court,

Sutherland, J.

The justice erred in receiving testimony as to the time to which the cause was adjourned. His docket, or the record kept by himself, of the proceedings, was the best and only proper evidence; that, however, is not the question this court is called upon to decide, which is, what is the remedy of a plaintiff where he is nonsuited in a justice’s court after issue joined % must he bring a certiorari, or may he appeal ? The common pleas quashed the appeal, it would seem, on the ground that the plaintiff’s remedy was by certiorari; in this they erred. It is only where there is no issue, that a certiorari will lie. (4 Cowen, 536. Ib. 501.) Every error that intervenes before the justice after issue joined, must be corrected by appeal, and not by certiorari. An alternative mandamus is granted.