Scott v. Rushman

1 Cow. 212

• Court: New York Supreme Court
• Decided: August 15, 1823
• Status: Published

Opinion

Curia..

There is no necessity for a seal to the return. The Justice is equally liable for' a false return, as if a seal had been affixed. His Court is not of record ;

(a) and a return under his hand is sufficient. The statute does not require a seal, and we can see no reason why one should be affixed, (b)

Motion denied.

а) Vid. Stewart v. M'Guin, ante 99.

There is certainly no reported case which determines that the seal of u single Justice is necessary upon bis return to a certiorari. It is said in Will-, lams’ Justice, Certiorari viii. “ There can be no doubt but that a return by-individual Justices should be under hand and seal.” So far as a seal is concerned, this has been said, in several books, of all returns to writs of certiorari, whether directed to inferiour courts, or single magistrates. The saying, in relation to the latter, is probably founded on 2 Hawk. ch. 27, s. 65. And there are several old cases, which look like requiring a seal by inferíour courts, (vid. Cro. Eliz. 821. 1 Leon. 311. 1 Lev. 311,) upon the authority of which, writers have proceeded. (Vid. Burns, J. Certiorari iv. Bac. Ab. Certiorari, (Hi) Yet Hawkins seems tobe overruled, even in England, as to the inferiour courts, and after admitting this, as Mr .Williams does, it is difficult to conceive on what ground the necessity of a seal for the single magistrate, can, in any case, be longer maintained. If, as is probable, the idea of a seal has arisen from the analogy between a court and corporation, the reason for requiring one to represent a court composed by ■a collective body of magistrates, would seem to be much stronger, than where a single man is called upon to return. I appeal to the experience of the profession, that a Sheriff’s return tp his process, is ordinarily, not un~ -der seal; and it seems by the following case, that his return to a writ of inquiry, or the return of a Coroners’ inquest, need not he sealed : and Caldecops marginal note is general, that “ a return to a certiorari need not be under seal.”

Rex v. Pickersgill et al. (Cald. Cas. 297 )

Davenport, moved for a rule to shew cause, why the return to a cer. tiorari, to remove an indictment of the defendants’, at the quarter sessions of the county of Middlesex, for a fraud and conspiracy, should not he quashed. The form in which the writ ran was, “ To our Justices of Oyer and Termi- >‘ ner, &c. That you, or one of you, send, under your seals, or the seals of

one of you,” &c. And now he contended, that the return, not having been made in compliance with the exigency of the writ, as not being, under seal, could not be supported.

Morgan, opposed this application ; and insisted that it was not necessa, ry, and was not usual in writs of inquiry, where it is so directed ; and he appealed, for this fact, to the Under Sheriff of the city of London, then in Court, who confirmed him,

Buller, J. It has been usual not to return Coroner’s inquests under seal.

Davenport, after some consideration, withdrew his motion.

Mr. Caldeeot adds the following

Note. In the case of The King v. Atkinson, Esq. May 10, 1785, this , (i. e. the want of a seal upon the return to a writ of certiorari,) was one of the errors assigned in the House of Lords; but was abandoned upon the argument.