People ex rel. Roe & Roe v. Suffolk Common Pleas , 18 Wend. 290 ( 1836 )

By the Court,

Bronson, J.

[552] The party applying for a certiorari must make an affidavit, “ setting forth the substance of the testimony and proceedings before the justice, and the grounds upon which an allegation of error is founded.” (2 R. S. 255, § 171.) After the-allowance of the writ, it is,-with the affidavit, to be served on the justice, (§ 175;) and in-his return, -.the justice must truly, and fully answer to all the- facts set- forth' in the affidavit' on which-the certiorari was allowed.” (§ 178.) The justice, in making .his return,-as well as in all the previous proceedings, should stand indifferent between the. parties. Except: in the.ministerial duty-of issuing process, he should not consent to.act either,, as-the-attorney or agent for the suitors in his--court, nor do anything calculated to:create, a bias in favor, of the one side or the other. By preparing-the affidavit, the justice was in some- degree committed to maké his return conform to' what he had previously-.alleged was “-the substance of the testimony and proceedings” in the cause. But, independent of this consideration, the -act complained of was calculated to impair the confidence of the opposite party in the impartiality of the officer, which is of itself an evil which should be carefully avoided. Next in importance to the duty of rendering a righteous judgment, is that of doing it in such a manner as will beget no suspicion of the fairness and integrity of the judge. In the case under consideration, the relators have stated several matters which they deem evidence of the partiality of the justice, and, among others, that he refused to amend his return in a point wherein they allege it is erroneous. This suspicion of the magistrate has no doubt arisen -from the fact, that he consented to act as the attorney or agent of the opposite party in preparing the papers; and although he may have acted with perfect uprightness in all that he has done, (and the co.urt certainly does not intend to intimate a contrary opinion,) he made a mistake in, relation to his duty, which, if sanctioned; would furnish a precedent" of dangerous tendency. He did not act as the mere amanuensis of the attorney. Mr. Buffet was not present when the affidavit was drawn, and he did not dictate any part of its contents. He only requested the justice to be particular in stating what was the appearance of a book which had been given in evidence. In Fox v. Johnson, (3 Cowen, 20,) the court set aside the return of a justice, to a writ of certiorari, because it had been drawn by the attorney for the plaintiff in error. In point of principle, it is no less objectionable to allow the justice to prepare papers which should be drawn by the attorney, than it would be to allow the attorney to prepare papers which should be drawn by the justice.

[553] There is another objection to the affidavit. .The statute requires that it shall .set forth “ the grounds upon which an allegation of error is founded,” and this affidavit states nothing whatever on that subject. Where it appears from the affidavit that questions concerning the regularity of the proceedings, the admission or rejection of evidence, or the like, were made and decided on the trial, that will be a substantial compliance without specifying, at the close of the affidavit, the particular grounds of error on which the party relies. (The People v. Columbia C. P. 6 Wendell, 544. The People v. Onondaga C. P., 8 id. 509.) In this case, the affidavit .does not state that any question arose or was decided on the trial, nor does it set forth.any ground of error whatever. The party probably intended to rely on the argument that the evidence did not warrant the verdict. If that was the ground of error on . which he relied, it should have been stated in. the affidavit. The court is not at liberty to hold that this requirement of the statute may be wholly disregarded. The common pleas should have quashed the certiorari, and a mandamus must issue.