Durkee v. Bracket

1 Cai. Cas. 501

• Court: New York Supreme Court
• Decided: February 15, 1804
• Status: Published

Opinion

Harrifon in iupport of the motion.

As no bill of exceptions will lie in this cafe,

* the injury will be without remedy, unlefs the court, by virtue of their fuperintcnding jurifditizion, pleafe to interpofe. This they have authority to do, from their general controling power. This differs from the applications to return evidence, becaufe, there it would be to afume a right to determine on facts, matters cognizable by a jury alone. The granting of a certiorari, is not confined to reafons that appear on the record. In 4 Vin. 342. Letter D. pl. 7. title certiorari, the writ was allowed to inquire, whether the defendant, who had pleaded his protection, as the King’s fervant, was attending on the King, for his own bufinefs, or the King’s.

Henry contra. This is in fubftance to bring up the faft ; and this court has decided, it will not oblige a juitice to return evidence.

Per curiam. Take your rule or certiorari as you may be advifed.

1 Rev. Laws 316. i he words of the a<5£ are, “ When any one who is impleaded before any judges or justices, doth allege an exception. Therefore, query as to this and ice 2d Imt» 4*7- 00*