
    Clark against Lawrence.
    "Whether the excuse for the party’s not making an affidavit to obtain a certiorari must be shown to the commissioner who allows it, or may be shown for the first time a- - gainst an application to set aside the writ? (¿uere.
    
    To warrant an application to set aside a writ for irregularity, it should appear to be returned.
    C. P. -Kirkland,- for the defendant, moved to quash a certiorari, to Justice’s Court, because it was founded on the affidavit of the attorney, and not of the party in the Court below.
   Lynch, contra, read an affidavit showing that the party was a widow, and did not conduct the suit in person, but left it to the attorney who made the affidavit. This last affidavit was made, to oppose the present motion, more than thirty days after judgment in the Court below. He referred to Dickson v. Seelye, (6 John. Rep. 327,) as decisive, to show that the affidavit containing the excuse, for not having the affidavit of the party, may be made after the thirty days.

Kirkland, said, in that case the affidavit was laid before the Commissioner, who allowed the writ. This is necessary, as the proceeding should be regular in the first instance.

The Court, however, inclined to consider it sufficient, if the excuse appeared in answer to the motion for setting aside the writ; that it was in the nature of a cross application to amend ; and they were about to overrule Kirkland’s motion, on payment of costs by the plaintiff;. when,

Lynch, objected that it did not appear, from the defen'dant’s affidavits, that the certiorari was returned ; and the Court, being of opinion that this was necessary, in order to warrant the application, refused the motion, with costs to be paid by the defendant!

Motion refused, 
      
      
         In Perrot v. Hele, (3 Wils. 53,) it was said by Yates, J. and agreed to by the Court, that “ you cannot take any advantage of the irregularity of process, without having it returned, and before the Court.” The same point arose in Walker v. Hawkey, (5 Taunt. 853,) upon which Copley & Best, Serjts. Were at issue, but it does not appear to have been necessarily involved in the decision of the cause; and it is difficult, if not impossible, from the short note of the Court’s opinion, to say how they considered it.
     