
    CARMAN against CARMAN.
    ON CERTIORARI.
    Time of issuing writs of certiorari, not limited like writs of error.
    This was a certiorari to a court for the trial of small causes; the judgment below was rendered in the year 1800; and the certiorari was not taken out until 1809.
    
      Mr. Ewing now moved the court to dismiss the certiorari; contending,
    1st. That the certiorari was barred by the 11th section of the act respecting writs of error, Pat. SJ¡.6, which enacts, “that writs of error shall not be brought but within five-years after rendering the judgment complained of, with the usual exception of infants,” &c. That a certiorari to a court for the trial of small causes, was to all intents and purposes a writ of error; [*] that in this point of view, and as applied to the case before the court, the word certiorari, or words writ of error, are the same thing; the terms are synonymous; therefore, his client’s case came within the plain meaning and express words of the act.
    2d. That should any doubt be entertained of the soundness of the position laid down as above, yet that his client’s case came within the spirit and equity of the act; that statutes must be considered as embracing cases coming within the reason and equity of the act: Bacon Ab. Statute, I. 6. Whenever a case is within the mischief intended to be remedied by a statute, the statute must be construed as extending to it; and this principle hath been extended to the statute of limitations, 1 Blac. Rep. 287; 2 Bur. 961; 3 P. Williams, 287; 2 Atk. 225; Bul. 150; 3 N. Y. Term Rep. 205. This case is within the equity of the statute of limitations in eases of writs of error; great evils, and much injustice will arise from permitting certioraris to be brought at any distance of' time.
    For the plaintiff in certiorari,
    
    it was said, that this was an application to restrain the common law on a [471] particular subject, by a statute that had no relation to it. That a certiorari was a different thing from a writ of error, and was used for different purposes. That certioraris had been used to "justices of the peace time out of mind, and no evil had arisen from, the practice. That the Legislature never intended to limit certioraris; the limitation in question was not contained in the general act of limitations, but in the act respecting writs of error, and must be confined to that subject only. That even if the court should think proper in exercising their discretion with respect to the allowance of writs of certiorari, to be governed by the equity of the limitation clause respecting writs of error, yet it would not apply to a case where the writ had already been allowed, returned and filed.
    
      Mr. Ewing,
    
    in reply, repeated and enforced his opening.
    
      
       Repealed and supplied, 28th Feb 1820, Rev. L. 691, By tlie 7th sect., a certiorari is not to be issued after 18 months from judgment.
    
   [*]

Kirkpatrick, C. J.

When this question was first stirred, he inclined to think that certioraris came within the limitation clause respecting writs of error; but on a closer examination of the subject, finding that the restraint in question was not contained in the general act of limitations of suits, but was part of the act respecting writs of error, he was of a different opinion; and although that act might afford a rule in this court in the exercise of a discretion in the allow-of writs of certiorari, yet it ought not to affect this case; the writ being allowed and returned.

Rossell, J.

Expressed his sentiments to the same effect, and nearly in the same words.

Pennington, J.

Had never entertained an opinion that eertioraris came within the restraining section in question; yet he was clearly of opinion, that there ought to be some limitations to eertioraris to courts for the trial of small causes; and that it would be proper for this court to adopt the restraining clause in the act respecting writs of error, in the exercise of a discretion vested in it in the allowance of writs of certiorari. His mind was prepared to assent to this rule, that no writ of certiorari to a court for the trial of small causes, should be allowed after the expiration of five years from the time judgment -was rendered, unless on application made in open court, on notice to the adverse party.

Rosseel, J.

Was willing to agree to such a general rule; but, on the suggestion of the Chief Justice, it was unanimously agreed to defer making the rule, in order to give time for the more deliberate consideration of the subject in vacation.

Rule refused.

The judgment of the justice, being admitted to be erroneous, was

Reversed.  