Ludlow v. People — 1 Cole. Cas. 34

Majority

p. 34

Ludlow ads. The People.

THE Defendant was indicted at the Oyer and Terminer 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 Termi-ner, and returned by him with the Indi ctment annexed, and the following Questions occurring : 1 st, Whether a Certiorari to remove an Indictment for Felony could be allowed, otherwife than on motion in open Court, and special Cause shewn ? 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 ? 3dly, If the Certiorari in the present Cafe 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 nifi, prius at the Circuit, or at Bar ? and whether a foreign Jury could be awarded in a capital Cafe ? the Court permitted the Certiorari and Return to be lodged only in Court for the prefent, 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

p. 35

in the Cause, viz. " The Writ of Certiorari "issued out of this Court, in this Cause, direct"ed to James Fairlie, Clerk of the Court of Oyer "and Terminer, and General Gaol Delivery, in "and for the County of Queens, and the Return " of the said James Fairlie to the said Writ, be"ing read, Ordered, that the said Writ and Re- " turn be not received and filed in this Court, "and that the feveral Matters, intended by the "said Return to have been certified and returned "to this Court, be in the same State in which "they were before the said Writ issued; the laid " Writ and the said Return notwithstanding." 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.