
    BECK v. KNABB.
    If the Defendant be not notified that a certiorari is allowed before the 1st term he shall be permitted on his appearance at a subsequent term to take exceptions.
    
      Certiorari.—On the fourth day of the term, a rule was entered to shew cause why the certiorari should be dismissed.
    Upon examination of the proceedings, it appeared the certiorari had been returned the term before the last; but no supersedeas was returned. An appearance had not been entered; nor did it appear that any notice had been served.
    
      Counter affidavits are not admissible in support of a motion to dismiss a certiorari.
    At this term, it was moved that the defendant be permitted to take exceptions, as not being such a case as came under the general rule, that the defendant must except the first term.
    Per Curiam.—It should appear, that the defendant was apprised of the removal of the cause to this court which does not, either from appearance, or otherwise—It is not too late to take the exception.
    The plaintiff then offered his own affidavit to disprove the statement made in the petition.
    Whiteside and Emmerson,—for the defendant
    opposed the receiving this affidavit. This a point of practice, which has not been settled in this state—It was recollected in the course of practice, that it had been done in one instance, but refused in others. It is true the practice in N. Carolina, is different.—The propriety of that practice, even there was doubted; but if good in that state, it did not follow that our practice must be the same. It is well known, that there are scarcely two states in which the practice is the same. Practice, must depend very much upon the local institutions of each state: The time employed in hearing & investigating cross affidavits, will be a burthen to our courts of justice. On the other hand it was argued by the counsel for the plaintiff, that the law here, was the same as in North Carolina, where the practice had been settled for many years, to receive and hear cross affidavits, and either dismiss or continue certiorari’s as the case might appear to the court 1 Hayw. 280, 366.
   Overton Judge

—This is a point of practice, that deserves much consideration, more perhaps, than can now be afforded, but as it strikes me, the practice of N. Carolina, as stated in Hayw. Rep. 280, 346, is extremely doubtful, as to its propriety upon the English authorities but waiving this for the present, let us consider how the practice ought to stand here ; for surely we are not implicitly bound by what we find in their books. By the English law a Certiorari, as a remedial writ, could not ordinarily be granted after trial, unless on points of law; & then not to courts to which a writ of error would lie. Before the formation of our constitution, it was usual to grant a Certiorari, after verdict and judgment below, in civil cases. The practice was well settled in this respect. It appears to have been so settled in N. Carolina. In this, the two states agree, but differ from the English law, in issuing the Certiorari, as primary process, after a determination in the court below. The practice of the state of N. Carolina, in all subsequent steps, after issuing the Certiorari, seems not conformable to the English practice. No reason can be seen, why that practice should have been departed from in the progress of the cause, but being a point of practice, the courts of each state will and ought to adopt such a course, as they may conceive applicable to their own peculiar situation. By the practice in England, certiorari’s were never granted to inferior courts of record, except before trial below. The enquiry then is, how did they conduct the proceedings, after issuing the writ. Whether it were necessary to lay a ground, so as to authorise a court or a judge, to issue the writ, is not now material to enquire. Our contitution expressly says, that ground must be laid by affidavit. It however seems deducible from the English authorities, that it was necessary to lay some ground in all cases, except at the instance of the crown. Upon return of the writ and proceedings of the court below, in ordinary cases they were filed immediately ; nor upon general principles is it recollected, that affidavits on either side, have ever been received there. If granted for the purpose of having a trial in the superior court, the cause proceeded of course; this being the practice in England, is it more reasonable to adhere to it, than to adopt the practice we find laid down in Hayw. Rep. 280, 366. The practice under the common law seems much more conformable to the spirit of our government. The constitution, article 5, sect. 6, provides, that the judges of the superior courts, shall have power in all civil cases to issue writs of certiorari to remove any cause, or a transcript thereof, from any inferior court of record into the superior on sufficient cause, supported by oath or affirmation. This clause certainly contemplated some new provision. By the well established practice in England, a civil cause could be removed from an inferior court of record before trial. This clause does not state whether the cause shall be removable before or after trial below; if the clause is construed as merely declaratory of the English practice, the argument is at an end; the certiorari must be dismised as having improperly issued; but it is said, and truly, that it was the practice to issue certiorari’s to remove causes, after determination below, previous to the adoption of the constitution; and that, that practice has uniformly continued since. As this was the practical law of the state at the time the constitution was formed, we may well suppose the constitution is bottomed upon this basis; to wit, that the expression any cause includes as well those, already tried in the court below, as those which were not. But why was the practice of removing causes after trial below, established in a court of record, in our government, when it was not the case under the practice of the common law ? it results from the difference in our judicial organization. By our law an appeal from an inferior to a superior tribunal, both as to law and fact, is matter of right ; not so by the common law : By that law a trial perpais, is unknown in appellate proceedings. Our law supposes, and it is believed with propriety, that the injustice of a decision made by an inferior tribunal, cannot be remedied, so satisfactorily, & effectually, in any other way as by a review in a superior tribunal, as to fact, as well as law. The party wishing to appeal, may be prevented by accident, over which, he may have no control. How is he to be remedied ? The practice both of N. Carolina and of this state, has settled the point, by certiorari : a proceeding unknown to the common law. That law supposed injuries to have arisen, in the inferior courts of record, from misconception of matter of law, and not of fact. Hence a writ of error only was allowed, in which matter of law only came into view. From these principles also, resulted that other, that after trial in a court to which a writ of error would lie, a certiorari would not. Our law supposes that a review of the fact, is as necessary, to the administration of justice, where justices of the peace preside; as that of the law. If then the party loses the benefit of the ordinary remedy by appeal, without design, or fault of his own, he ought to have this writ for the attainment of justice, so that the fact as well as law may be re-examined, agreeably to the genius of our government and laws. A writ of error could not have the same effect. In England, the principal, if not the only ground for granting a certiorari, to an inferior court of record before trial, was a well grounded apprehension, that a fair trial could not be had. There, however, if you submitted the determination of the fact to a jury below, you had no remedy in the way of appeal. If in England, an apprehension of not being able to get a complete investigation, would be sufficient cause to remove by certiorari, surely an actual unfair trial from which the injured party had no opportunity of appealing, ought to afford a stronger ground, where a review as to facts is allowed.

Hence the practice of granting certiorari’s after trial below, in this country is correct and proper: but at the same time it seems equally evident, that it ought not to be extended further than the reasons which gave rise to this deviation from the common law practice, would authorise. When, therefore, it appears that the complaining party had an opportunity of appealing, and did not avail himself of it, he ought not to support this writ, otherwise he ought and proceed in the same manner that he would do, upon an appeal. and be subject to no other restrictions. Vide 1. Haw. 423, s. 58. The mode of ascertaining whether he had it in his power to appeal, is by affidavit, as pointed out by the constitution.

When a court is satisfied by affidavit that a party could not take his ordinary remedy by appeal, which is matter of right; a certiorari should be granted and the cause ought to proceed in the same manner, as an appeal, being its substitute. This impression accords with case and dispatch in doing business, and consequently with the convenience of the people.

If affidavits and cross affidavits were admissible without number, we should be much longer and frequently, more laboriously employed in searching out the truth amidst piles of affidavits, than we would in trying the cause: under these impressions the affidavit of the plaintiff cannot be read.

White, J.

—The practice which has obtained in North Carolina, seems correct. The statement made in the petition, is ex parte. It may not be true and it would seem unjust to preclude the opposite party from shewing it. There was a doubt, whether agreeably to the practice in England a certiorari could issue to a court of record in a civil case; the provision in the constitution seems to be designed to remove this doubt; He did not see any other meaning that could be attached to it. This being the case why should not the practice be the same as laid down in Haywood’s Reports? Our laws are the same, unless the constitution has produced a change, which did not appear to him. He was therefore of opinion, that the affidavit should be received.

Campbell, J. thought that it ought not to be read. 
      
       1 Wash. 325, Per Pendleton C. J. Although uniform decisions, which establish the rules of property ought to be adhered to, yet he did not view them sacred in points of practice which may be varied as experience shall evince their convenience or inconvenience.
      The same judge observes in 1 Call Rep. 323, uniformity in the decisions of the court is important ; we have however progressed but little from the commencement of our existence ; and if in any instance we should recently discover a mistake in a former decision, we should surely correct it, and not let the error go forth to our citizens, as a governing rule for their conduct. Sec 4 Dall. 161 n.
     
      
      See Add Rep. 193, 2 Hayw. 245.
     
      
      Vide the case of King, Carson and King vs. Renfroe where a cross affidavit of a disinterested person was allowed
     