Hyperlawhypertext legal database Van Patten v. Ouderkirk 2 Johns. Cas. 108

← Cases

Van Patten v. Ouderkirk

2 Johns. Cas. 108 Court N.Y. Sup. Ct. English

Contents

Majority

p. 107
Van Patten against Ouderkirk.([1] )

Headnote

A justice cannot move to quash a certiorari directed to him. He must obey it at his peril; and return what is legally required of him, and take no notice of what he is not bound by law to return.
On certiorari, from a justice’s court,
jEmott,
in behalf of the justice, moved to quash the writ, because it required him, among other things, to return the testimony. It was admitted that no notice had been given to the opposite party, but it was contended that none was necessary.

This writ is the right of the party who takes it out, and the justice is bound to obey it, at his peril. If he is not a party, it does not lie with him to move that the writ should be quashed. He is not however hound to return any thing, but what can legally be required of him, notwithstanding the command expressed in the writ. In this case he ought to return all but the testimony ; he need take no notice of that part of the precept which enjoins him to return that..

Rule refused.