
    MAY v. THE EXECUTORS OF R. CAMPBELL.
    A writ of certiorari lies to remove a cause from a justice of the peace to the superior court under certain circumstances.
    A judgment was obtained before a justice of the peace. The defendant, it appeared from the petition. wished to avail himself of the plea of plene administravit, before the magistrate, but he proceeded to give judgment. He applied to two justices of the peace, for a certiorari to the county court, under the act of assembly, but they declined granting him one, thinking it an improper case for the allowance of such writ. Upon this refusal he applied to a judge of this court, who granted one returnable to this term.
    Campbell, for the plaintiff
    moved to quash the writ, and argued that the 6th and 7th sections of article the 5th of the constitution forbade such a procedure. He particularly relied on the 7th section, which states “the judges or justices of the inferior courts of law, shall have power in all civil cases, to issue writs of certiorari to remove any cause or transcript thereof, from any inferior jurisdiction, into their courts, on sufficient cause supported by oath or affirmation.”
    This clause he contended, clearly meant to exclude the exercise of any power of this kind, by the superior court.
    Trimble, e contra.
    -The act of assembly, 1801, C. 7, s. 4. directs that two justices of the peace may issue a certiorari, to carry the proceedings before the county court, but the exercise of such a power is limited to twenty days.
    The defendant has stated on oath that he had it not in his power to procure one within that time, and that the act did not authorise justices of the peace, to grant one afterwards. If this court cannot entertain jurisdiction, the party will be without remedy, and without any laches or fault.
    The English authorities shew that the court of Kings Bench, exercises superintending control over all inferior jurisdictions, by means of this writ.
    Campbell in reply.
    —We have a government of our own, and the English authorities cannot control our constitution,or the acts of assembly made in pursuance of it.
    They give this power to the county courts, and the superior courts, have no right to exercise it.
   Overton, J.

-The English authorities shew that the superior court or court of King’s Bench, exercises controlling superintendance over all inferior jurisdictions.

A certiorari is one of the writs adapted to this purpose.

Upon the principles of the common law, the power cannot be taken away by inference. A statute, to have this effect, should have a negative meaning, as to the jurisdiction of this court.

This principle was recognized in the case of Murfree vs. Leeper, determined in the district of Mero, some years ago, on a caveat. The English courts, seem to have considered the writ of certiorari, when applied for by a defendant, as entirely a matter of discretion, and not to be granted, but upon the strongest reasons. It was considered a matter of course not to grant one after a trial below.

Our constitution seems to have designed that it should be a writ of common remedy as well before as after trial, upon sufficient cause being shewn by affidavit.

But the constitution does not say nor convey an idea, that this court shall not exercise the power of granting a certiorari, to remove the proceedings had before a magistrate in any possible case.

I have no hesitation, in saying that as the constitution and act have prescribed an ordinary mode of proceeding in this case, that this court ought not to grant this writ to remove the proceedings had before a justice of the peace, without the strongest and most invincible reasons. There are two which I should consider as indispensable.

1st That the party praying the writ should account in a satisfactory manner, for his not appealing to the county court; and

2nd In like manner, account for not having pursued the course prescribed by the act, in relation to obtaining the certiorari from two justices: And that too, in both cases so as to demonstrate, that there was no laches or fault on his part. When this is done, this court cannot refuse their aid to effectuate the purposes of justice, by directing a full and complete investigation.

The defendant has accounted to the satisfaction of my mind, why he did not pursue the ordinary remedy by appeal, and how he was defeated of the more discretionary one by certiorari to the county court.

I am therefore of opinion that the writ should not be quashed.

Campbell, J.

-I granted this writ; at the time I was inclined to think it was right, and that the party might not complain of a denial of justice, was willing to have the opinion of the court upon the case, though aware that objections might be made. Upon argument I am confirmed in that opinion; and accord with the one given.

White, was related to one of the parties, and therefore did not sit. 
      
       Tidds Pr. 333 Murfree vs. Lee per ante.p.1
     
      
       Tidds Pr. 330.
     