Fox v. Johnson — 3 Cow. 20

Majority

p. 20

Fox against Johnson

Headnote

A return to a certiorari will he set aside, if it he attorneyS. *7 for the plaintiff in

Oft certiorari from a Justice’s Court.

I. Seelye,

i . • • • moved to set aside the return to the certiorari iti *kis cause, with all subsequent proceedings, upon an affidavit of the defendant’s attorney, that the Justice who tried the cause in the Court below informed him that one of the attorneys for the plaintiff in error drew his return. He cited Rudd v. Baker, ( 7 John. 548 .)

S. A. Foot, contra,

read an affidavit of the Justice, stating that he delivered the certiorari, and a copy of the affidavit upon which it was founded, to the attorneys for the plaintiff in error, and requested them to draw the return ; that this was without any previous request or solicitation, for that purpose, by them or either of them ; that one of them did draw the return, which he read over to the Justice', and the same being correct, he signed it. He also read an affidavit of one of the attorneys for the plaintiff in error, who drew the return, confirming the Justice’s affidavit.

He said that Rudd v. Baker was the case of an officious intermeddling on the part of the attorney ; but the presen is a case of plain, honest dealing. The Justice may employ such agent as he pleases to draw up his return. If it be false he is accountable.

He should have employed some one other than the attorney for the plaintiff. The practice of resorting to the attorney for the plaintiff in error is a dangerous one. It is liable to great abuse, being in the hands of one who is interested to reverse the judgment. The rights of the defendant in error are concluded by the return, who must submit, or be put to the expense and delay of an action, if the return be false.

It is our duty to reject this return, on the same principle that we refuse to hear an affidavit, taken before the attorney in the cause. It might be different, if the attorney simply wrote what the Justice dictated, acting the part of a mere amanuensis.

Foot. The present case is little, if any thing, beyond that.

Woodworth, J.

If the Justice dictated the return, it was very easy to say so in the affidavits.

Foot. The rale which the Court appear inclined to establish, would hardly allow the attorney to correct a clerical or grammatical inaccuracy, or to make a copy of the return.

That would, perhaps, be a different case, hut the attorney here draws the whole return, upon the general request of the Justice. We are all clearly in favour of the motion.

Motion granted.