Stewart v. Emory

1 Tapp. Rep. 100

• Court: Jefferson County Court of Common Pleas
• Decided: December 15, 1816
• Status: Published

Opinion

President.

The oth section of the “ act against forcible entry and detainer,” provides, “ that the proceedings under that act, may be removed, by certiorari, into the court of common pleas, and there be quashed for' irregularity, if such there be.” It is urged, that because this act giving the right to remove such causes, by writ of certiorari, does not require bail to be given, that this proceeding is correct without bail, and that the 18th section of the “ act defining the duties of justices of the peace,” &e. does not extend to this case. I should doubt that position, if there was no such provision of the law as is contained in the last mentioned section, because it would be contrary to

the uniform policy of our laws to allow a writ of error to issue without bail being given. But the last mentioned section of the law leaves no room to doubt on the subject; that requires the clerk of the court issuing a writ of certiorari “to require and take from the person requesting such writ, previous to his granting the same, a bond with sufficient security,” and this in all cases. The same section also requires the person applying for such writ, to notify the adverse party thereof. As to this, it is unnecessaey to give any opinion; for unless the clerk of the court takes' bail previous to issuing the writ, he issues it without the sanction of law. It is, therefore, illegal and void. Such being the case with this writ, it must be quashed.