Blake v. Hall — 5 Cow. 37

Majority

p. 37

Blake, by his Guardian, against Hall.

Headnote

A certiorari removes, in contemplaiton of law, the record itself; and where the plaintiff appeared in the C. P. by guardian, and the peared^there • and the tiff had filed a declaration ; held, that ho might proceed against the defendant in the supreme rourt on the removal of the cause by certiorari, by immediately taking a rule against him to and for want of a plea, take a default.

This cause was removed by certiorari to this Court from the C. P. of the city and county of New York, after the plaintiff had declared in the Court below., After the return of the certiorari, on the 23d of August last, the plaintiff entered with the clerk of this Court, a rule to plead to the declaration in the Court below, of which he gave the defendant notice ; and, for want of a plea within the usual time, entered a default. Neither special nor common bail had

p. 38

been filed in this Court; nor had the defendant appeared • jiere any form • nor had the plaintiff, who was an infant, and sued helow by his guardian, had any guardian or next friend appointed in this Court.

J. M’Kown, nioved to set aside the proceedings for irregularity.

He contended that the plaintiff should have commenced his proceedings de novo, by having a guardian appointed, awaiting the defendant’s appearance, and declaring in this Court. He admitted that Wolfe v. Horton, ( 3 Caines’ Rep. 86 ,) was against this; but Rex v. North, (2 Salk. 565,) on which alone the case in Caines went, does not decide where the proceedings are to begin in the Court above ; and the English authorities are against the practice pursued in this case. (Tidd, 349, Riley’s ed. Id. 6 ed. 411. Bac. Abr. Certiorari, (K.) 4 Vin. Abr. 359, pl. 4. Lee’s Dictionary of Practice, 286.)

B. F. Butler, contra,

cited 1 Dunl. Pr. 223.

A certiorari is in nature of a writ of error; and removes, in contemplation of law, the record itself. This was held in Wolfe v. Horton, ( 3 Caines’ Rep. 86 .) It follows, that the cause is here, on the return of the certiorari, in the same situation as to the appearance of the parties, and other incidents, as it stood in the Court below. And it proceeds here directly from the point at which it stopped below. The English practice appears to be different; but the practice of this Court has been settled ever since the case of Wolfe v. Horton.

Motion denied.