
    Mairs against Sparks.
    A RULE had been obtained to shew cause why the writ of certiorari should not be set aside, upon the ground that it was allowed and issued before judgment given. The facts seemed to be, that this was an action of forcible entry and detainer tried at Salem; that as soon as the verdict was rendered and judgment pronounced, and before it wras recorded, Orane, attorney for the defendant, presented to the justice this writ; the judge who gave the allocatur, living many miles distant.
    Allocatur certiorari,
    
      Jeffers for defendant in certiorari. Orane for plaintiff.
   Kirkpatrick C. J.

This court will not, in this way, inquire into the time of making the allocatur on the certiorari. It is the constant practice, under certain circumstances, to make the allocatur, so that the party may have it in his possession when j udgment is rendered: and it is necessary that it should be so. In many cases it is the only way in which an execution and a change of possession can be prevented, no matter how illegal the proceedings may have been. As soon as judgment is pronounced, a writ of error may be presented, and the party is not bound to wait until the judgment is enrolled.

Rossell J. was of the same opinion.

Southard J.

was not altogether satisfied with the practice, but considered it as having heretofore received the sanction of this court, and therefore settled.

Rule discharged. 
      
      
         Mairs vs. Sparks, 2 South. 513. Delancy vs. Lawrence, 6 Hal. 25. Morris Canal ads. Mitchell, 2 Vr. 99. State, Elder vs. Med. Soc. 6 Vr. 203. See Harrison vs. Sloan, 1 Hal. 410, 414. Ludlow vs. Ludlow, post 387.
      
     