
    KING, CARSON, AND KING, vs. RENTFROE.
    Affidavitsof disinterested persons may be received in support of an application to dismiss a certiorari,
    
    
      Petition for a certiorari and supercedeas. Notice had been given by the defendant that a certiorari would be moved for.
    Dickinson, and N. M’Nairy, for the plaintiff,
    opposed the motion, and offered the affidavits of several persons, to shew that the statements in the petition were not true.
    Whiteside, of counsel for the defendant,
    said, that the ease of Beck, vs Knab, had decided this principle, though in that case, the application was to read the affidavit of the person against whom it was obtained, yet the reasoning adopted by the court, went to the exclusion of affidavits altogether.
    
      Per Curiam. White, J. and Campbell, J. The application in the case alluded to, was to read the affidavit of the opposite party. The introduction of the affidavits of others, was not then before the court and consequently is now open for investigation.
    The counsel for the plaintiff relied upon the cases in Haywood’s Reports, 280, 366. An application for a certiorari, is in effect an application for a new trial.—In such applications cross affidavits are not received and the reason is obvious; there, all the circumstances and evidence are within the knowledge of the court. Not so in an application for a certiorari. The evidence adduced, and the circumstances attending the trial below, the court cannot be presumed to know. It is therefore proper, that they should hear cross affidavits, otherwise they could not have as full a view of the case, as they would in the ordinary case of an application for a new trial, which they ought to have so as to enable them to determine, whether, a new trial ought to be granted or not. The petition only exhibits one side of the question.
    Whiteside, e contra.
    
    Let the case be assimilated to an application for a new trial, how does it stand? Suppose a new trial moved for upon an affidavit or affidavits as is frequently the case, did the courts ever permit cross affidavits to be read? No instance of the kind can be produced. The reason is plain, if courts can hear cross affidavits they must in justice hear affidavits to rebut them, &c. and thus induce a necessity for the court to judge of the credibility of different persons; a principle which all our laws seem carefully to guard against. Besides, it would produce great confusion, and perplexity in the practice.
   Overton, J.

This is a motion for a certiorari, upon the ground disclosed in the petition. The case seems susceptible of the following points of view.

1st. How is that class of cases called motions, conducted by the English practice, in their different courts? Whether supported by affidavits or not; and if they are, whether cross affidavits are receivable?

2d. Does an application for a certiorari, differ from other motions; and what is the practice upon certiorari’s in England, considered as remedial and not auxiliary process?

3d. A comparison of this case with that of Beck vs Knab.

4th. Is the practice as laid down in Hay. Rep. respecting the introduction of cross affidavits, founded in the principles of the practice in England, or in that of our own government. As to the first point it seems evident as a general rule, that affidavits are necessary to lay the ground of motions, but that cross affidavits are not generally received in opposition, for two reasons, first it would compel the court, whose province it is, to judge of law and net of contested facts, to determine upon the credibility of persons; and secondly, it would be harrassing a court of justice with lengthy investigations, respecting the propriety of merely preparatory steps. These motions may be grounded on incorrect statements of facts, but that does not affect in the smallest degree a determination upon the merits. The fallacy of these statements may sometimes produce delay, but that is all. However the law does not presume a man will swear falsely. It is better says the law to bear with a particular mischief, than a general inconvenience. In considering the second ground, it appears agreeably to the practice in England, that the Crown is entitled to a certiorari, without laying a ground by affidavit, or otherwise; but not so of individuals. When, however an individual states his case, it is discretionary with the court to grant, or refuse the writ: but when it has been granted, and returned, it will be filed immediately of course. 2. Haw. 419. S. 68: from this general rule, cases respecting the proceedings of commissioners of Sewers are excepted. After the writ is returned and filed, no affidavits respecting the propriety of granting it, are received.

In the single case alluded to, upon return of the writ, the court will not permit it to be filed, until they see whether there are substantial objections to it or not; which may be supported by affidavits, being the only case known of in the practice in England. The reason of this exception, given in some of the books, is, that the adjoining lands might be inundated, and the health of the neighbouring people destroyed, if the proceedings of the commissioners were superseded for any length of time. The public, beside individual interest, seems greatly concerned in this case.

In all other other cases the writ is filed of course, and no other objection to the propriety of issuing is recollected, except such as appear from the face of the paper. It is the established practice here to admit objections to the propriety of obtaining the writ, during the return term, but not afterwards, when issued by a single judge out of court, for defects appearing on the face of the petition. This is agreeable to the practice in England as laid down in first Bur. 48, 4. Bur. 2459, and 2522. The king is entitled to a certiorari of course, being authorised to prosecute in what court he pleases 2. Haw. 407. Certiorari's to inferior courts of record,must be before trial below; the object being to get a trial above. It lies to all inferior jurisdictions, not of record, after judgment below.

As to the third ground, it appears clearly to me that the principle upon which the case of Beck, vs. Knab, was decided is the same with this. The principle was, whether cross affidavits generally should be received, though the particular case before the court was whether the affidavit of the opposite party should be received. As far as the authority of the reasoning in that case goes, it decides this

The next enquiry is whether the practice stated in Haywood, with respect to the reception of cross affidavits, is agreeable to the practice in England. It seems to me that it is not, except in the case of commissioners of sewers, where the public interest is directly involved. The reasons and authorities have been stated before. Nor does this practice seem to accord with the essential principles of our government; whatever it might have been in England, and in North Carolina. The convention certainly conceived, this writ deserved particular care in its preservation, as being of consequence to the public happiness.

In England it had been considered most generally, as a discretionary writ in contradistinction to one of common right. The very circumstance of inserting a provision in the constitution, almost carries conviction to my mind, that the nature of this writ is altered so far as to make it a writ of right and not of discretion. The constitution however contemplates the laying ground by affidavit for the writ; so far, it is discretionary, but when sufficient matter is disclosed in the affidavit to authorise the writ, it is no longer discretionary. Even in England, it has sometimes been considered, as of common right, Strange 609: Surely, it ought here, being in many points of view, an important part of our constitution. An appeal by our law is considered as matter of common right, and highly necessary to the preservation of our lives, liberties, and properties. A man may in various ways loose the benefit of an appeal without any fault of his own: This writ then is the only common remedy In appeals the party is entitled to a jury trial. The constitution says, that shall remain inviolate. Suppose a person deprived of an appeal, without any fault in himself; he files a petition supported by affidavit; agreeably to the constitution, a certiorari issues; affidavits and cross affidavits and affidavits to rebut, are received: Amidst this contrariety of testimony the court judges on which side the truth lies. The genius of the laws of England and of our own country, seems generally adverse to the exercise of such a power. It is a maxim that questions of law belong to the court,and those of fact to the jury: and so careful does the law appear to be of this distinction, that in mere preparatory steps, it will not ordinarily admit of this collision. When matters of common right are concerned, such as that of having a re-examination of a mans cause by a jury of his country, the spirit of our constitution and laws, seem clearly to oppose the exercise of such a power by the court. In many cases it might happen, that for want of a sufficient knowledge of the characters of those making affidavits, a court might dismiss this writ, and the party be deprived of a jury trial altogether, without any fault on his part. Under these impressions it seems to me,that cross affidavits cannot be received inthis case.

Campbell J

Thought the case different from that of Beck vs. Knab. There is certainly much more reason that we should hear the affidavits of indifferent persons, than the opposite party,who would of course be interested. Let the affidavit be read.

White, J.

was still of the same opinion he entertained, in the case of Beck vs. Knab. The ground which has been taken by the plaintiffs counsel, respecting a new trial, seems correct. This in fact, is an application for a new trial. It is well known that in applications of this kind, courts always exercise a discretion ; and if they do, how can it be done fairly and with impartiality, unless we hear affidavits. If we take the ex parte statement in the petition, it will only be hearing one side. In common cases of applications for new trials in the same court, we have a view of the state of the case, on both sides, this, at once, will account why cross affidavits, are not heard. The court have a knowledge of the case without them. Here, we cannot, unless we hear the affidavits ; and to a rightful determination, whether a new trial should be granted or not, or in other words, whether we allow or reject the application, it seems necessary that these affidavits should be read. 
      
       Counter affidavits refused,1 John Rep. 313.
     
      
       See 4 Burr, 2458. Str.549,563. Andr. 27 Com. Dig. Str. 609. 8 Mod. 331 Fortes. 374.
     
      
       See 1 Salk. 145. Keil, 157.
     
      
      See Burr 749. Str. 612, 1227. Ld. Ray. 137 991, 1372 1 Salk. 149. 6 Mod. 17. 8 Mod. 913.
     
      
       See 2 Haw 405, s22-23, and the authorities there referred to
     
      
       See 1 John. 313 3 John. 141
     