Ex parte Williams v. Albany Mayor's Court

12 Wend. 266

Opinion

By the Court,

Nelson, J.

It was supposed by the relator that the provision of the revised statutes, 2 R. S. 257, § 180, authorizing a certiorari cause to be brought on to argument without any assignment or joinder in error, had totally abolished the use of an assignment of errors in causes removed by cer-tiorari from justices’ courts. Admitting such to be the the construction of the statute as to the formal general assignment of errors, which presents merely questions of law, it could not have been the intenfion of the legislature to abrogate the use of an assignment of errors, where the errors do not appear on the face of the justice’s return.1 It would be intolerable, if misconduct of the jury, or improper practices of the parties, not coming under the observation of the court below, could not be corrected ; and they could not but by the use of an assignment of error in fact. The necessity of such a remedy is clearly pointed out in Harvy v. Rickett, 15 Johns. R. 87, and in that case adopted by the court; and it is not believed that the legislature contemplated to deprive parties of its benefit.

Motion denied.