
    THE STATE v. FARLEE.
    The court which issues a writ of error is to decide upon the propriety of it; the court to which it issues cannot examine into the question.
    
      Leake had obtained
    a rule to show cause why a writ of error which he presented should not be allowed, or an appeal granted to the governor and council, upon a judgment of this court on habeas corpus.
    
    
      
      Boudinot, Jun., showed cause,
    and insisted that a writ of .error would not lie in this ease, it not being matter of record. No judgment is given upon which a writ of error at common law cau be grounded. The relief rests on facts not put on the record — matter of evidence,' of which a court of error cau have no cognizance. It is against the very end of the proceeding, which is to relieve against the unlawful restraint of liberty, and by a summary inquiry. He cited the case of [83] Bishop of St. David’s v. Lucy, 1 Salk. 134; Finch v. Renew, 3 Salk. 145 ; King v. The Dean and Chapter of Trinity Chapel, 8 Mod. 27. As to granting au appeal, ho contended that it fell under the same objections. Besides au appeal could only lie in civil cases, tried according to the course of the common law, and the constitution of New Jersey gives an appeal to the governor and council as heretofore.
    
      Leake contended that whatever the rule of law in England might be, as to an appeal or writ of error on a habeas corpus ad-subjeoiendum, all the reasoning from it was inapplicable to the case of negroes, liberated on that writ here; that it was in New Jersey a mere question of property; and in its nature as much the subject of revision as any other species of property. He insisted that it was a matter of constitutional right, that no party could be deprived of a revision of a judgment, or proceeding in any court, which affected his property. As to the proceeding not being of record, he contended they were all of record ; and the facts of the case might be as well judged of, on an appeal, in the Court of Errors, as here. He conceived there was no court in New Jersey which could originally try and finally determine. This court was not to decide on the question of the jurisdiction of the other, that the point now in debate could only be brought forward on a motion to quash in the court above.
    
      Boudinot, in reply, cited
    the case of Sir Christopher Heyden v. Roger Godsalve, 2 Croke 341
   Per Curiam.

The court must allow the writ of error. We cannot inquire into the competency of the writ. The court who issued it must do that, and we shall give no opinion on the point.

Cited in Slate v. Baird, 4 C. E. Gr. 488.  