Ball v. Van Houten

4 N.J.L. 32

• Court: Supreme Court of New Jersey
• Decided: February 15, 1818
• Status: Published

Opinion

But by the Court.

From the facts proven, we find no Maches in the plaintiff, in certiorari; and having done every thing required of him, he ought not to be deprived . of his remedy, by circumstances which he could not govern or control. He must in some way, have a return to his writ. But the justice cannot now make the return. He is no longer a justice, nor inhabitant of the state, nor has control over the record. Nor is it perceived that the court can grant the present motion. Were the justice dead, and the docket deposited in the clerk’s office, agreeably to the 39th section of the act, constituting courts for the trial of small causes, there would be no difficulty. The clerk might then make a return; but his power does not extend to a case like the present. Another course must therefore be adopted. Let the party take from the docket of the justice, a true copy of the record, annex it to the writ of certiorari, return it to the court, and by proper and competent affidavits, prove, that it is a copy of the record.