
    [245] [*] THE STATE against NEWARK AND POMPTON TURNPIKE COMPANY.
    ON CERTIORARI.
    Special certiorari not to issue without leave of court. Attorney may not issue suhpcena for witnesses in certiorari cases.
    A certiorari had issued in the ordinary course of certiorari to the justice of the peace or Quarter Sessions, to the Secretary of State, to send up the proceeding, had in laying out and return of the road, laid out under the act, to incorporate the Newark and Pompton Turnpike Company. The counsel for the prosecutors, finding that they had not taken the regular course as to the issuing the writ, moved in November Term last, to quash the writ of certiorari. This being granted, they then presented for allowance in open court, a new writ. The counsel for the turnpike company being in court, said that he would not at that time object to the allowance of the writ, but saved all legal objections to be taken at another day; and now
    
      Mr. M’ Whorter, in behalf of the turnpike company, moved on notice previously given, to quash the writ of certiorari, on the ground of its having improvidently issued. He said, in all cases of special certioraris of this nature, they were not to issue but on special application and rule to show cause,, on which the court [*] could judge of the propriety or impropriety of the allowance, for which he cited 19 Vin. 425.
    
    
      Mr. A. Ogden and Mr. I. II. Williamson contended, that no notice was necessary in such cases; and that the writ in this case, was issued on an allowance actually made in open court, and that the constant practice of the court was to allow such writs without notice.
   Kirkpatrick, C. J.

— Said, the court was of [246] opinion, that these writs could not issue as of course, but on a special case made out, on which the court could judge of the propriety of the allowance; but as matter had been disclosed by the return, that would have induced the court to have allowed the writ, they saw no use in quashing it, and refused the motion.

A subpoena had been issued to one of the commissioners to appear in court this term, and give testimony in the cause which, according to the language of subpoena, ms to be then and there tried. The person subpoenaed did not appear.

Mr. Kearney moved for an attachment against him, for not appearing.

Pennington, J.

— Asked Mr. Kearney what authority he had for issuing the subpoena? That it appeared to him a crude proceeding, for an attorney, at his pleasure, to issue subpoenas in cases of certiorari, commanding persons to attend this court as witnesses, from the most distant parts of the State.

Kirkpatrick, C. J. — Said, that he was clearly of opinion, that an attorney had no such authority; and on Mr. Williamson’s asking how the facts in those cases were to be made out, the Chief Justice answered, by obtaining a rule to examine witnesses, and the subpoenas issue. It was said, by the counsel for the prosecutors, that the person subpoenaed could not judge of the legality of process, or whether it issued on rule or not, on which the court inclined to allow a rule which was now asked for, on the commissioner subpoenaed, [*] to show cause at the next term why an attachment should not issue against him; but it satisfactorily appearing that he was in ill-health, the court refused the rule; on which

Mr. I. II Williamson moved for and obtained a rule for the examination of witnesses, and the issuing subpoenas in the cause.

Cited in State v. Hanford, 6 Halst. 71; City of Camden v. Mulford, 2 Dutch. 49. 
      
       Notice of motion for certiorari needless. 7 Halst. 366, vide Cox, 393.
      
     