Vanleer v. Johnston ( 1835 )

Green, J.

delivered the opinion of the court.

It is insisted, that the circuit court erred; for that the act of 1833, ch. 65, sec. 2, confers on two justices the power to grant such process, at any time within which the circuit judge could exercise it. The language of the section is, “that two justices may grant a certiorari and supersedeas, to remove the judgment and proceedings of justices of the peace, returnable to the circuit court of their county, subject to the same rules as now regulate certioraries, as granted by a circuit court.” To under.stand this section, we must take in our view the old law, the mischief, and the remedy which was demanded. By the old law, justices had no power to grant a certiorari and supersedeas, to be issued out of the circuit court. Taul vs. Collingsworth, 2 Yerg. Rep. 579, The mischief was, that while the law authorized cases to be carried directly from a justice to the circuit court, by certiorari, great inconvenience was experienced, in consequencemf the distance parties would have to travel to obtain an order for this writ from a circuit judge. The remedy demanded was, that for the convenience of parties, the justices should have power to grant the writ. There was no necessity for extending the time, within which they might so act, beyond that prescribed by the act of 1801, ch. 7, sec. 4, for a like action, where the process was to issue from the county court. Indeed, it would be a strange supposition, that the legislature intended, that the power of the justices to act in this matter, should be restricted to twenty days, when the cause was to be removed to the county court, and that it should have no limitation in relation to the circuit court. We would not so construe their acts, unless they had indicated such to be their purpose, by the use of very explicit'language; especially, as it might he very mischievous in practice, to confer on them so extensive a discretion.

This court is, therefore, of opinion, that the act of 1833, ch. 65, sec. 2, only conferred on two justices the power to grant a certiorari and supersedeas, issuing from, and returnable to the circuit court, under the same circumstances, that by the act of 1801, ch. 7, sec. 4, they were authorized to grant that process, to issue from the county court. Let the judgment be affirmed.

Judgment affirmed.