#### Foster vs. Foster, use, &c.

A writ of certiorari, directed to a justice of the peace, should be delivered to and returned by him, together with a transcript of the record therein ordered to be certified to the Circuit Court; and not served upon him like a writ of summons.

The dicisions of this court, that, on a writ of certiorari, there should be a judgment of reversal or affirmance with an order remanding the cause if necessary, and not a judgment de novo for debt, damages and costs, approved.

Error to Union (Ji/roiuit Oov/rt.

Tbe Hon. ShbltoN "WatsoN, Circuit Judge.

GarletoN, for tbe plaintiff.

Tbe Circuit Court bad no jurisdiction to try tbe case on tbe merits, until tbe justice of tbe peace bad responded to tbe writ of certiorari, and where tbe Circuit Court acquiresjurisdiction on a writ of certiorari, it can render no other judgment than merely to quash tbe proceedings of tbe justice, or affirm them with an order to return them to tbe justice for executing tbe judgment. 1 A/rk. 480/ 4 ib. 473; 5 ib. 364/ 3 Eng. 115 / 4 ib 32/ 6 ib. 614.

Mr. Justice Scott

delivered tbe opinion of tbe Court. ■

Upon tbe petition, with accompanying exhibits' of tbe plaintiff in error, a writ of certiorari to Grumbles, a justice of tbe peace, was ordered by a Circuit Judge in vacation, returnable into tbe Union Circuit Court, at tbe October term, 1851.

Tbe sheriff, instead of delivering tbe wilt to tbe justice, read it over to him, and himself returned tbe writ to tbe clerk, who bad issued it, with a like endorsement as .if be bad served a writ of summons. It does not appear that tbe certiorari was ever in *400any otherwise served upon tbe justice. Nor does it appear that tbe cause was ever certified info tbe Circuit Court by tbe justice. At tbe April term, 1852, tbe parties, announcing themselves ready for trial, tbe court, after bearing argument, and on “inspection of tbe, papers,” found “no material defect or error in tbe judgment and decision of tbe justice,” and thereupon rendered a judgment final, in favor of tbe defendant in error against tbe plaintiff in error, “for tbe sum of thirty dollars for bis debt, together with tbe further sum of one dollar and fifty cents damages, besides all costs” in that and in tbe justice’s court. Tbe plaintiff in error took a bill of exceptions, setting out tbe petition, and exhibits, and tbe final judgment of tbe court, and brought bis case here by writ of error.

If tbe judgment of tbe court could be sustained upon a presumption that tbe cause intended to have been removed, bad been in fact certified into tbe Circuit Court, in response to tbe writ of certiorari, we would indulge that presumption, and act upon it, but it cannot, because it is a judgment de novo for debt, damages and costs, and not a judgment of reversal or affirmance, with an order remanding tbe cause if necessary. Thorn vs. Reed, 1 Ark. 480; Pulaski County vs. Irvin, 4 Ark. 473; Anthony Ex parte, 4 Ark. 364; Sawger vs. Crawford County, 4 Eng. R. 32; Carnall vs. Crawford Co., 6 Eng. 614.

Tbe judgment of tbe Circuit Court must be reversed, and the cause be remanded.