Overseers of Bethlehem v. Overseers of Franklin

26 N.J.L. 210

• Court: Supreme Court of New Jersey
• Decided: February 15, 1857
• Status: Published

Opinion

The opinion of the court was delivered by

Elmer, J.

The English rule is, that a certiorari to two justices in a pauper ease will not be allowed until after the time for appealing lias elapsed, as it had in this case. 1 Salk. 147. Our statute prohibits the writ from being allowed or issued on any judgment, order, or proceeding that shall have been entered or obtained in any court of record, unless the same be issued in eighteen months after entering or obtaining the same. Nix. Dig. 633, § 106. Had this case come within that statute, I should have been in favor of dismissing the writ, notwithstanding the defendant waived the objection j but the two justices did not constitute a court of record, and therefore no time is prescribed within which the writ shall issue in such a case. This writ not being of right, but subject to the discretion of the court, we ought in all cases to require that it he issued in a reasonable time. In this case the delay has been satisfactorily accounted for, and it appearing that the order does not set forth that it was made upon the application of an overseer, it comes directly within the case of Overseers of Princeton v. Overseers of South Brunswick, 3 Zab. 169, and must be quashed.