
    C. B. King v. C. S. Longcope.
    Where the statute required an applicant for a certiorari to give bond in at least double the amount in controversy, it was held that a bond in double the amount oí the judgment sought to be revised was sufficient. (Note 36.)
    In some States a petition for a certiorari is regarded as subject to the same rules which apply to a motion for a new trial; but here, where an appeal is not allowed from the decision of a justice of the peace, less strictness is required. (Note 37.)
    Appeal from Eaj^ette. Suit was brought by tlie appellee against the appellant. before a justice of the peace, to recover damages for an alleged trespass committed by the latter, in killing- and converting- to his own use certain hogs, the property of the former. The plaintiff claimed one hundred dollars. On tlie trial before the justice, there was a verdict and judgment for tlie plaintiff for fifty dollars. The defendant, after having made an unsuccessful attempt to obtain a new trial, petitioned the District Court for a certiorari.
    
    The petitioner stated the proceedings before tlie justice, and gave a circumstantial, prolix history of his rights, and the wrongs lie alleged lie had sustained. He alleged that the five hogs killed by him were his own property, raised by anti well known to him ; that, discovering that the agent of the plaintiff was endeavoring to exercise acts of ownership over them, he gave him notice that they were, his property, and of tlie day on which he would kill them ; that, after tlie bringing- of the suit, he was informed and believed that the mark of the plaintiff was the same as his own; but that on the trial he was surprised by evidence introduced by tlio plaintiff, that his was a different mark; that, in consequence of his misapprehension and belief, he was not prepared at the trial with evidence, which lie could have produced and which, he will be able to produce, should a now trial be allowed him, to prove, that no one oí the hogs in question was in the mark of the plaintiff, hut that they were all in the mark of the petitioner. He further alleged, in substance, that lie did prove on the trial that the property in question was his; that the total weight of the five hogs did not amount to eight hundred pounds ; that it was admitted that poi'k was worth four cents per pound, and that the verdict was for fifty dollars, which was illegal and excessive. He further alleged that he made these several matters, and especially the surprise occasioned by the evidence produced against him as to the mark of the plaintiff, the ground of an application for a now 1 rial, which, however, the justice refused. He avers that he did prove at the trial, and will be prepared to prove by testimony still more ample, and to tlie satisfaction of an impartial jury, that tlie hogs in question were his own property; that tlie verdict and judgment were not warranted by the evidence; that lie was injured thereby in lils property and reputation ; that it was not in consequence of any fault of his; and that if a new trial be allowed him in tlie District Court, he will be able fully to establish liis right of property, and to obtain a different result from that on the trial before the justice.
    A writ of certiorari having been awarded, and the proceedings before the justice having been brought before the District Court, the defendant in the certiorari moved to dismiss tlie same, on the grounds—
    1st. That tlie bond given to obtain the writ., being for one hundred and fifty dollars, was not in double the amount sued for before the justice, and was not, therefore, sufficient in amount.
    2d. That the petition did not set forth any legal ground for the awarding of the writ.
    Tlie court sustained the motion on the second ground, and dismissed the cer-tiorari; and the plaintiff thereupon appealed.
    
      Webb and Hancock, for appellant.
    Green, for appellee.
   WheeleR, J.

Tlie objection taken to tlie sufficiency of the bond, clearly, is not tenable. The ” amount in controversy,” in contemplation of tlie statute, (Hart. Dig., art. 1753,) must be considered, for the purpose of determining the amount'of the bond to be given to obtain the certiorari, by tlie amount of the judgment to be superseded. " A bond in double tlie amount of the judgment will afford a security to tlie party whose judgment is suspended, as ample as a bond in double tlie amount sued for before the justice. And this must have been what the Legislature intended.

The materia] question to he determined is, does the petition disclose facts sufficient to entitle the plain till' to the writ?

In support of tlie negative of this question, we have been referred to tlie decisions of tlie Supreme Court of Tennessee, where it appears to have been held that a petition for a certiorari is to he regarded as an application for a new trial, and is subject to tlie application of the same rules.

This is a convenient and may be a just doctrine in its application in practice in that State. But here, where an appeal is not allowed from the decision of a justice, and the only mode of revising his judgments and correcting his erroneous decisions is by certiorari, or some other remedial writ, less strictness ought, we think, to be required.

If tlie trial was by a jury of twelve men, and before a court competent to instruct them in the law and their duty, the party ought not; on principle, to he allowed a new trial, unless he could bring his application within tlie well-settled rule’ governing new trials in tlie District Court; and there would be propriety anil justice'in applying the rule adopted by tlie Supreme Court of Tennessee. But where the trial has been by a jury of six men. ignorant of tlie law, before a justice of the peace no better informed, perhaps, than themselves as to tlie law, tlie justice of applying the rules which govern new trials in the District Court to an application for a reinvestigntion of the ease on its merits before a tribunal more competent to administer tin; justice and law of the case, may well bo questioned. The presumption that justice has been clone is certainly

Note rg. — Davis v. Pinckney, 20 T., 340.

Note 37. — Hooks v. Lewis. 1G T., 551; Clayv. Clay, post, 250; Hope v. Alley, 11 Tex., 259; Inge v. Ponson, 15 T. 315; Connally v. Renn, 17 T-, 123; Peabody v. Buentillo, 18 T., 313; Robinson v. Jjakey, 19 T.. 139 ; Jones v. Nold, 22 T., 379; Givens v. Blocker, 23 T., 033; Darby v. Davidson. 27 T., 432; Clark v. Hutton, 28 T. 123; Cordes v. Kauffman, 29 T., 179; Ham man v. Lewis, 84 T.,474.

less cogent in the latter case than it would be in the former; and, in reason and on principle, less ought to be deemed sufficient to repel that presumption and entitle the party to a rehearing.

The administration of justice is intended to afford protection and security to the rights of person and property. But it can scarcely be supposed tliat there would bo security or protection afforded to either by a trial before a justice of tlie peace and six jurors, whose decision may involve a determination affecting character and the rights deemed by the law sacred and inviolable, if that decision is to be held final and irreversible in any other proceeding by any other tribunal, unless the party aggrieved can bring his application strictly within the technical rules which góyern new trials in courts of law.

Such strictness ought not, we think, to be required in an application for a certiorari to revise the decision of a justice of the peace. But where, from the averments of the petition, if true, (and they are to be taken as true on a mol ion to dismiss for the want of merits in the petition,) it appears that the party has merits, and there is reason to apprehend that injustice may have been done him without any fault of his, and especially where, as in the present case, the decision is one which affects not only his property but his reputation, — the writ ought to be granted and a new trial awarded.

We are of opinion that the petition, in the present case, showed sufficient cause for the awarding of the writ, and that the court erred in dismissing it. The judgment is therefore reversed, and the cause remanded, for further proceedings.

Judgment reversed.  