Steiner v. Fell

1 U.S. 22, 1 Dall. 22

Opinion

By the Court.

Whenever a writ issues fairly, if it is first delivered it shall take preference—The proceedings, on a Habeas Corpus are de novo; on a certiorari, the court proceed on the state returned. Therefore, both writs cannot issue in the same cause; for the court cannot proceed de novo and on the old record too; which upon the idea of returning both writs must be done. In this case, the defendant not having affected delay, but proceeded in the usual course, having taken out the first writ, and delivered it as soon as was usual, his writ should take preference; and the Court accordingly order the return to be made on the Habeas Corpus.