
    VOORHEIS against KERNS. [703]
    on OEETIOEABI.
    Certiorari dismissed ; the return not being called for by the plaintiff.
    The writ of certiorari having been delivered to the justice, he made no return, and a rule was taken the last term, on the justice to make return. At this term,
    
      Mr. Halsey,
    
    for the defendant, read the following certificate from the justice, and on which, he moved a dismissal of the certiorari, on the ground that the plaintiff had not followed up his writ with due diligence. The justice certified as follows :
    
      John J. Voorheis v. Samuel Kerns; I do hereby certify that immedialely after the receipt and service of the certiorari in the above stated action, I made out the transcript and proceedings m the said cause, ready to be delivered to the plaintiff when called for; that I received in a letter a rule of the Supreme Court, requiring me to make return thereof, which I have at all times been ready and willing to do. The plaintiff in certiorari, nor no other person in his behalf, having at no time called upon me for the same, 1 do not perceive it my duty to carry the same and deliver it to the court, or clerk of the court. The plaintiff, or any [*] person, on his order, can have the proceedings at any time.
    
      M’Donald, for the plaintiff,
    could not deny the facts stated by the justice; the plaintiff had expected that the justice would return the writ, and therefore, had not called on him; he now wished for time to procure the return of the writ, with the transcript of the justice.
   Pennington, J.

I am. glad to see this certificate. The justice is correct in the idea of his duty; and unless the facts are denied, I am clearly of opinion, that the certiorari be dismissed.

By the Court.

If we indulge this practice, certioraris will be made use of as instruments of delay.

Writ dismissed.  