
    Smith vs. Wade.
    (Jackson, Chief Justice, was providentially prevented from presiding in this case )
    Where to a rule in a justice court against a constable, he answered that he had been notified to hold the money to pay a claim put in therefor by a contestant, it was error to dismiss the rule.
    
      (a). Where a certiorari was sued out on account of such dismissal, the proper judgment was to remand the case with instructions to the justice to try it on its merits, and decide it in conformity with the facts.
    
      Certiorari. Practice in the Superior Court. Before Judge UNDERWOOD. Floyd Superior Court. January Term, 1880.
    Reported in the decision.
    W. D. Elam, by brief, for plaintiff in error.
    Forsyth & Hosicinson, for defendant.
   Crawford, Justice.

The plaintiff in error brought a rule in a justice court against J. L. Wade, the bailiff, calling upon hina to show cause why he should not pay over five dollars and fifty cents in his hands collected upon a fi. fa. in favor of the movant. The bailiff answered the rule by showing that he had been notified to hold it to answer a claim put in therefor by a contestant. The justice, upon this answer, dismissed the rule. To this judgment certiorari was prayed and granted, and when the same was heard in the superior court, it was sustained upon the ground that the court below erred in dismissing the rule, when the facts .should have been heard by the justice, and the money ordered to the party legally entitled thereto.

The order of the judge remanded the case with instructions to the justice to hear it upon its merits, and after the facts are made to appear, to decide the same in conformity therewith. To this' ruling exceptions were filed and a writ of error sued out.

The judgment of the court is both authorized and required by §4067 of the Code.

Judgment affirmed.  