#### Gidney v. Hallsey & al.

From Tyrrell.

A judgment having been obtained againstthe Defendant, in the Coun- ' ty Court, a ca. sa. issued, and the Defendant gave bond to keep the prison bounds. Afterwards the Defendant obtained writs of super-sedeas and certiorai i, and on the return of the certiorari, the cause was ordered to be placed on the tral docket, The Defendant, after having obtained the writs of supersedeas and certiorari, left the bounds, and, on a motion for judgment against the securities to the bond, it was held, that as it appeared that the cause was ordered to be put on the trial docket, before the motion was made on the bond, this order drew after it all the consequences of an appeal from the County to the Superior Court, and totally annihilated the judgment, and rendered the security a nullity.

This was a motion for a judgment against the Defendant, Hallsey, and two others, his securities, on a bond given by Hallsey, conditioned that he would keep within the prison bounds, in the county of Tyrrell.

The case was this: Plaintiff brought suit- against the Defendant, Hallsey, in Tyrrell County Court, and obtained a judgment by default, whereupon a ca. sa. issued, on which tiallsey was arrested, and entered, together with the other Defendants, into the bond on which the motion was made. After the bond was executed, Hallsey obtained, on affidavit, writs of supersedeas and certiorari, to the County Coart of Tyrrell, and at September Term, 1823, of Tyrrell Superior Court, the certiorari was returned, and the cause ordered to bo placed on the trial docket, with leave, to Hallsey, to plead. This motion was then made on the bond, and Plaintiff offered to prove that, after the writs of super-sedeas and certiorari had been granted and delivered to those to whom they were directed, Bailsey had been seen, at large, without the prison bounds. The presiding Judge, Itonnell,. refused the motion, and the Plaintiff appealed to this Court.

*551/%*:?» for <ko appellant,

referred to Tidd} 1073 — 9 John.n» G6.

Taylor, Chief-Justice.

This is a motion for jiuir;-fficsil. on a lo keep the prisco bounds, the condition of which is alleged, by the Plain I iff, to have bees* broken by the Defendant, ífallsey, having gone beyond Cae- limito in coaseguctico of a certiorari and sufiersedcos issued by a Judge of the Superior Court, it is urged, by the i.: kbit kY, that. EteJlsey, bciag in tnotody upon a kí\ mi. ¡be supersedeas co«M aiot ha to tbs effect, of le-gaily dVeijoirging him the. cdVcta, end 1Uo.m authorities liare tiren yeícítd 1o, v. b*eh shew, 1ha* if an Kecndon lias been began, it r.noil he CiK.hJ tied, uol withstanding Hit* delivery of a writ of cijper"f.dea», or the «lio «raneo of a writ of error. That the law is so si England, and that si person in custody upon a ea. so. is not entitled to bis discharge, notwithstanding a writ of supersedeas bo delivered ío the E’tmüF, is not to be controverted. It is there held, that a capias being a complete execution, a writ of error comes too late afterwards, and, therefore, the party shall remain in prison, noi withstanding the writ of error. Thin doctrine pervades the ancient cores, ana is; admitted, ar>-;v,emlo, is: modern ow« : but I have met with uo cere, where it lias been acted on, since the statutes of S Ja. 1, c. 8, and 1G and 17, Car. 3, c. 8, where bail has been actually put in, to answer the debt and damages, pursuant to those statutes. It is revolting to common .sense, lha< a man, who lias carried bis cause before a higher tribunal, under a belief that the law has not been adednistered to him, or that injustice has been done him below, should be detained in prison after be lias given bond and security to respond the ultima to recoray, and that too, upon the principle that the es.e-cation has been executed and cannot be undone. But the Oordiau knot might be cut, by lotfleg him out of goal. But, it is obvious that there is a very remote analogy *552between the writ of certiorari as used in England, and in this State j they are scarcely alike in any thing but in name. There, it sometimes issues out of Chancery, and sometimes out of the King’s bench, and is an original or judicial writ. It does not issue after judgment but in very special cases, and from absolute necessity, as where the Inferior Court refuses to award execution, then a certiorari will isc",e after judgment, for the sake of doing justice to the parties. So, where the Inferior Court acts in a summary method, or in a new course, different from the common law, a certiorari lies after judgment, though a writ of error does not. — (1 Lill. P. R. 252-3 — 1 Salk. 263. It in, therefore, only in a very few cases, that the object of a certiorari can be to obtain a new trial $ and when the record is removed before trial, the whole proceedings are begun de novo. It is also to be granted on matter of law only.

In. this State, the writ is invariably granted after trial, in the Inferior Court \ a case must be made out on the merits, upon affidavit, except where it issues to bring up a record, appealed from, but not filed in time, and the question in the Superior Court, always is whether there shall be a new trial. In addition to this, security must be taken by the Clerk of the County Court, to which it issues, in the same, manner as on appeals. This slight view of the subject., shews how little similitude there is between the two writs, and how incongruous it would be, to engraft upon ours, the strict practice and rigorous principies enforced in the English Courts, which may well harmonize with their systems, but are utterly discordant to ours.

The truth is, this writ lias grown up with the exigencies of the country, bar; been moulded to suit the convenience of the citizens, and although it has been highly assistant in the administration of justice, the principles and rules wide'! govern it, emphatically rest on the com~ ikou law of the ¡átate. Much respect is due to long e?. *553tablis* ed usage, founded on public convenience, and implied h. sanctioned by legislative recognition. The great utiU1:, aÍ the writ would at once be subverted, if it did siot restore property seized, or deliver a man from prison, for the ultimate redress by a new trial would come too late after the worst consequences of defeat had been suffered. I am disposed to adhere to the settled practice of the country, and therefore think the judgment should be affirmed.

Hall, Judge.

I think, in this case, the Court was right, in not giving judgment on the bond given to keep the prison bounds, because, had it done so, the Plaintiff, as this record shews, would be entitled to a double remedy, namely, one on that bond, and also one upon the proceedings had under the certiorari,* for a new trial lias been granted on that, and the Plaintiff, if he establishes his claim, will, on that trial, have another judgment. I think the first judgment was done away, by granting a new trial, and of course the execution issuing from it is superseded. I see no injury likely to occur on that account, because the law directs that in granting a certiorari, new security shall be taken for the debt, against which judgment may be entered up, as against security for an appeal.

Henderson, Judge.

In this case, it is not necessary to consider the effect of the certiorari and supersedeas, before a new trial is granted iu the Superior Court, for, upon this record, it distinctly appears, that before the motion on the prison bounds bond came on, a new trial had been granted in the original cause, and that it had been ordered to be transferred to the trial docket. 1 am well satisfied that by this order, to-wit, for a new trial in the Superior Court, ail the consequences attending an appeal from the County to the Superior Court, follow $ namely, a total destruction and annihilation of the judg-*554roent in tlie Inferior Court, as if it bad never been ; anti 0X('l!Uti«2i which had ■ issued thereon, was not only superseded, as that term is understood when ap-pjj{>í{ j-0 ^¡,e j)(.(>CPHS to slay proceedings which issue after the allowance of a writ of error, but the execution is rendered a perfect nullity, as if it had never been issued ; I think, therefore, that the Judge din not err in refusing judgment on the motion on the prison bounds bond. A supersedeas should be* considered only as auxiliary to the writ which s' accompanies, or the purposes for which the delay is required, if it be only to review and examine the correctness of proceedings in an inferior Court, and to affirm or reverse them, as the case, may require; there the supersedeas operates only to stay the p-'oeoedings in the situation in which it found them, but where the process is not barely to affirm or reverse the proceeding’s of the Court below, but to annihilate and destroy them, and to examine, the case de novo, as if such proceedings had never taken place; there the superse-deas, and most certainly when combined with the proceedings of the Court ordering it, annuls entirely the proceedings of the Inferior Court; it does not barely stay the proceedings ifi the situation in which it finds them, but certainly, with the order of the Superior Court annul ling the proceedings, annuls every thing done under them. The certiorari, in this case, is substituted for an appeal, which by accident, or some other cause, the party is deprived of. What may be its effect, when used for this purpose, accompanied by a supersedeas, before the awarding of the new trial in the Court above, as we have before said, it is not necessary to' examine. But when the new trial is granted, the whole proceedings become that for which the certiorari was substituted, to wit, an appeal, and a trial de novo both on the law and the facts, is had. This when attained, either directly by an appeal, or circuitously by a certiorari, annuls the judgment of the.Inferior Court, and of course every thing done under it must fall to the ground.

*555The capias au Ml.i.i¡aáenéim, toe arre»! «i toe Defend-art, the band to Jeep wstiiin the bonida <>f the prison, are means taken ¡o eaforre toe pe"foinsR:<í'e of íhc ju«‘g-imtmí. ' 4 hen ton objerí for v kirk toej Vi /a-i- resorte© to, iso burder estoís, niiiaí ceíc-e, J'íscí'© vtm is i.h-ng to pay, mo jJSGC-inrat to ssitosíj, and the P mcmuanl was left as if he had never been arrested.