
    JOHN K. SMITH versus UNDERHILL DANN
    May 17, 1825
    
      B. F. H. Withered and Alexander D. Fraser, attorneys for plaintiff (defendant in certiorari).
    Charles Larned, attorney for defendant (plaintiff in certiorari and petitioner for supersedeas).
   [OPINION]

Smith vs Danns Judg1 for Pltff before Justice Rowland—

Application for a writ of Certiorari & supersedeas—

Errors alledged—

Ist That demand being founded on, what is termed an accountable recp1 for propy recd by def1 from Pltff to sell, account for or return— and being dated at Buffalo, a demand should be made on sd recp1 at Buffalo— And in as much as no such demand, was proved to have been made, and it not being proven that the def1 sold the propy, therefore it is Contended that the justice erred in entering Judg1—. It is presumed that the pltff made a demand at some other place on the def1— On this latter head the def1 is silent in his dep°—

I do not think a demand at Buffalo, absolutely necessary— A demand of the property in the receipt at any place, was suff1 to put the proof of the propy still being on hand on the def1

The act to regulate and define the duties of Justices of the peace &c 16 Sec1— If the Parties are not satisfied, &c they may remove their Judg1 by Certiorari into the S. C. on the allowance of the writ by a Judge—

Affidavit of error to be made within 20 days.—

do to be delivered a Judge within 90 days.

If no notice in writing is given the Justice, within 48 hours, disclosing an intention to remove, the Pltff after the expiration of sd 48 hours, is entitled to his execution— But before it issues under such Circumstances, the Pltff must enter into Bond &c

Ist It would seem from a fair construction of the Act, that a Justice has not authority to issue an execution on his Judg1 until the expiration of 48 hours

2d That where notice is given of an intention to remove the Judg1 the Justice has no authority at the end of 48 hours to issue his execution— for what time his authority to issue execution is suspended, when notice is given, must be settled by the Court, on legal principles, as the statute is silent— The reason of the Law must be the guide for the Court in forming an opinion— The party has 90 days in which to prosecute his writ—■ But he has only 20 days in which to make his affidavit

Whenever a Judge allows a writ of certiorari to remove a Judgment of a Justice of the peace the Justice, on the party filing security according to Law, is estopped to issue an execution on such Judg1 afterwards— In such case the execution shall be issued by the S. C. if Judg1 is affirmed— But where no security is filed, the Magistrate may issue ex° notwithstanding the allowance of the writ— so far the 16 Section appears plain—

A question arises under the first provision, as to the time a party is entitled to serve his execution on a Judg1 where no certiorari has been allowed— where no notice shall be given in writing within 48 hours, of the intention to remove the Judgment by Certiorari, the Pltff is entitled to his execution, afterwards, provided he gives Bond &°

It appears by a rational construction of the proviso, that until the expiration of 48 hours, the Justice is not authorised to issue execution, where the parties are silent— the act from its praseology necessarily implies a negative, atho it does not in terms forbid him to do the act.— What then is the consiquence of giving the notice within the 48 hours— To me it appears evident on a reasonable construction of the act, that the party looses the right to have an execution, even if ready to give the surety to the opposite party as mentioned in the proviso, where no notice has been given— The Judg1 on notice being filed, remains wholly inoperative for at least a season— But for what term of time, must depend on afterfacts as they arise—

The party if he is serious [?], and intends to follow up his proposed remedy, is allowed 20 days in which to make his affidavit— If he passes that time, he is not entitled to a certiorari— The restraint on the Judg‘ in that case, should cease and ex0 be suffered to issue—

If the party makes the affidavit, he is allowed 90 days in which to present it to a Judge for the allowance— Should he fail to apply within the Latter time, his remedy is lost and ex° ought to issue unconditionally—

I am of the opinion that the above Constructions are Correct and such as the Court must conform to, in order to give a consistent operation to the provisions of the act.—

The Court are bound by the law so long as it remains valid, and if its operation is injurious the Legislature must give a remedy—  