
    Lambert against The People.
    NEW YORK,
    May, 1827
    On error in a criminal cause, a certidiminution™ need not be judged by "a
    It may be livering it to of the court tion’, whoVmay return it immediately, though it be court'6^t0 tbe
    It should properly be directed to the court.
    And a motion to amend, by directing it to the clerk, was denied.
    The court of error will not direct a rule upon the clerk of the court below, to return.
    Such rule should be upon tbe court below, who should order their clerk to return, if he mproperly refuse.
    The plaintiff may not enter a rule to join in error, of course on assigning errors in a criminal cause, as in ordinary cases; but the court will grant a rule on speciai motion.
    In this case,-they granted a rule of 20 days from the day when the assignment of errors was served on the district attorney.
    jjj January last, the plaintiff in error was convicted of . , . „ _ . r>-vr a conspiracy m the oyer and terminer of the city of JNewYork; and sentenced to be imprisoned. He prosecuted a wrjt of error, which was returned on the 4th of May, 1827. On that day, his attorney assigned errors, alleging for diminuti0n, that the indictment was found in the -general sessions, and sent to the oyer and terminer; but there was no rule for this purpose entered in the general sessions; *and a certiorari to the judges of the sessions. The assignment also alleged for diminution, that there was no in-dictment purporting to be found by the general sessions, , „ . _ , . , , on file m the court of oyer and terminer; and. prayed a certiorari to the judges of the oyer and terminer.. On the same day, -writs of certiorari, returnable without delay, J -i-,*,* -i . were issued to these courts, and delivered to their respec_ tive clerks. The clerks declined to return them, on the ground that they were not allowed by a judge; and had not been delivered in open court. A copy of the assignment was served on the district attorney.
    
      D. B. Tallmadge,
    
    now moved for a rule that the clerks return immediately; and also for a rule that the district attorney join in error immediately. He said the certiorari was of course, and need not be allowed. 4 Cowen, 91, 533. It may be served in vacation, like a mandamus; 4 Cowen, 73 and 403; and the clerk should return it. The plaintiff may be ruled by the defendants to return Ms certiorari in four days; and if this is not done, the defendants may enter a non misit breve. 1 Salk. 267; 2 Sel. Pr. 378; Tidd. 1112. In the court of errors, and house of lords, the plaintiff must cause his writ to be returned at a short day, or lose the benefit of it. 1 Archb. Pr. 231; 2 Dunl. Pr. 1147. This shows the writ must be returned by the clerk of the court below. If he cannot be compelled to do it, the plaintiff would, in all cases, lose the benefit of the diminution alleged.
    We ask a rule to join in error, because we suppose none can be entered of course in a criminal case.
    If the court will not give us a rule against the clerk, upon these writs, then we ask new writs’ directed to the clerks.
    The writ may, in some cases be directed to the officer known to have the custody of the record; though ordinarily it should go to the judges. Bac. Abr. Certiorari;(F) 1 Chit. C. L. 389; Hawk. P. C. ch. 27, s. 38; Dyer, 163.(6)
   Curia.

The certiorari to return diminution, need not" be .allowed by a judge. It was properly directed to the *courts below, and delivered to the clerk of the courts respectiyely, who may properly return it. But if he declines doing so, the motion to compel him to return, should, upon these writs, be made to the court below. Any rule to return, which we can make, must follow the writs; and be made upon the courts to which they are directed. We therefore, deny the motion for a rule against the clerk.

We also deny the motion for amended writs to the clerk; on the ground that they are properly directed to the courts.

As to the motion for a rule to join in error; the plaintiff may take a rule of 20 days from the day when the assignment of errors was served.

Rule accordingly.  