
    [Philadelphia,
    December 29, 1828.]
    In the Matter of the Appeal of JOHN TORR and others, Administrators of JOSIAH TORR, deceased.
    APPEAL.
    On a Certiorari, from this court to the Orphans’ Court, to remove the record, the original record must be returned.
    
      John To'rr and others, administrators .of Josiah Torr, appealed to this court, from a decree of the Orphans’ Court of Philadelphia county, in relation to their accounts. In conformity with the practice, a Certiorari had been issued to bring up the record; but the clerk of the Orphans’ Court declined sending up the original papers in his office, which were voluminous, offering to make copies of them, upon payment of the fees, for so doing, which he insisted he had the right to do. • On motion of Wheeler, for the appellants, a rule was granted, upon the clerk, to return the original papers, or show cause whyan attachment should not issue against him, with the view of obtaining the direction of the court, as to the course to be pursued, in such cases, by the officer.
    Upon the return of the rule, cause was shown on behalf of the clerk of the Orphans’ Court.
    ' Wheeler, in support of the rule.
    
      The Certiorari issues to bring up the record itself. 2 Pall. 190. The appeal only removes the cause. The 11th section of the act creates the Supreme Court, (1 Sm. L. 139,) and gives power to issue Certioraris. Cond. Gen. 90, is an authority, that the Certiorari removes the record itself, out of the inferior court, and 1 Bac. Ab. 573, F. N. B. 548, Lil. Ent. 252, 353, are to the same point.
    
      Ingraham, contra.
    It is perfectly true, that, upon a Certiorari, the record, itself, is returned, in the condition in which it was when the writ came to the court below, and every thing done in the court, between the teste and return of it; (1 Tid, 407, 8th Edit.) that is to say, a complete transcript of the record below, and not the mere substance of it. And, the safety of important papers, filed in the Orphans’ Court office, requires, that such should be the practice; for they are often lost or mislaid, and titles thus rendered defective. In point of fact, the original papers are never sent up in England. Chief Justice Holt, in Rex v. North, 2 Salk. 565, says, u It is an error in the clerks in London, that, upon a Certiorari, they return only a transcript, as if the record remained below; for, in C. B., though they do not return the very individual record, yet, the transcript is returned as if it were the record; and so it is in judgment of law; and it is in this sense, that a return of the ‘ record itself,’ is to be understood, when used by the writers of books of practice, as is evident from the marginal note of this very case, which is, ‘ upon a Certiorari the very record is returned.”’
   Pee Cüeiam.

In every sort of appeal, whether with, or without Certiorari, the practice is to send up the original papers, as far as is practicable. The dockets cannot be removed, and transcripts of the particular entries, necessarily, supply their place. But here there is a Certiorari to remove the record; and, where this writ issues from a superior to an inferior court, whatever may be the law in other instances, the original record is to be retoned. We are of opinion, therefore, that, to return a transcript, would neither agree with our own practice, nor answer the exigence of the writ, at the common law.

Rule made absolute»  