
    THE STATE, DAVID J. FARROW, PROSECUTOR, v. LENA SPRINGER.
    The action of a magistrate in issuing a warrant commonly called a search warrant, upon complaint, will not be questioned or reviewed by certiorari.
    
    Argued at February Term, 1894, before Justices Depub,.. Magie and Eeed.
    For the prosecutor, John W. Wartman.
    
   The opinion of the court was delivered by

Magie, J.

Prosecutor seeks by this writ to procure a- re-~ view of the act of a police justice in the city of Camden in' issuing a warrant commonly called a search warrant, upon a complaint made under oath to him.

He alleges various insufficiencies in the complaint and errors and omissions in the warrant.

Proceedings whereby stolen goods may be searched1 for;, and, if found, seized and placed in official custody, have been, known to the criminal law from a very early period. Notwithstanding some doubts expressed by Lord Coke as to. their legality (4 Inst. 176), the practice of issuing search warrants foi'stolen goods has been recognized and approved in innumerable cases, and by all other text-writers, as within the lawful powers of magistrates acting as conservators of the peace. 2 Hale P. C. 113; Burn Just., tit. “Search Warrants;" 1 Chit. Crim. L. 64; 1 Bish. Cr. Pro., § 665; Cooley Const. L. *300; 21 Am. & Eng. Encycl. L. 958; Boyd v. United States, 116 U. S. 616; Entick v. Carrington, 11 Harg. St. Tr. 321.

Such proceedings are of a criminal nature. The warrant can issue only upon complaint on oath, and it commands the officer to whom it is directed that if the stolen goods described are, upon the search, found, to bring them and the person in whose custody they were found before the magistrate. Upon its return the magistrate is to examine the matter; if it appears the goods were not stolen, the person in whose custody they were found is to be discharged and the goods redelivered. But if it appears that the goods were stolen they are to be deposited with some officer, so that the party robbed may, by indicting and convicting the offender, have restitution of them, and the person in whose custody they were is to be held to answer if he appears to have been criminally connected with the theft. 2 Hale P. C. 150.

The proceeding differs from the ordinary complaint warrant, examination and commitment, used to bring accused criminals to answer, in no respect except that it gives authority and direction for the search of suspected places described for certain stolen goods.

Will this court, by the writ of certiorari, stay a magistrate’s proceedings in such a case and review his action in issuing a warrant upon a sworn complaint? If it can do so it is conceived that the writ will lie to review any warrant for assault and battery, or larceny or other crime charged on oath, and the complaints aud warrants which by our criminal procedure are to be laid before the grand jury, will be thus drawn into this court. For there is no perceptible difference between the violation of a man’s liberty by his arrest on a ■criminal charge and the violation of his right of property by a search for goods, the possession of which has been obtained by crime. There is no ground of distinction which would justify a review in one case that would not justify it in another.

Doubtless, this court may, by this writ, review the actions ■of inferior courts of all kinds. It was an ancient practice of the King’s Bench to remove by certiorari into that court in■dictments found in the sessions. 1 Chit. Crim. L. 371. Such has always been the practice of this court, and the practice is regulated by statute. Rev.,p. 98. When indictments are thus removed, the defendant is brought before this court, and proceedings thereon may be continued to a final determination, •although, by more recent legislation, the proceedings may be ■remanded to the court from which they came, and to be there .prosecuted.

But my search has not disclosed any trace of the use of the writ of certiorari to remove the warrants of magistrates in •criminal cases, or the proceedings thereunder, prior to the finding of an indictment, and the writ is then obviously used, not for the purpose of review, but to remove the record with the object of proceeding upon it in this court.

In my judgment, the earlier use of the writ is opposed to ■settled rules. When thus issued, there exists no final determination to be reviewed, and the proceeding cannot be pursued in this court.

In Hoxsey v. Woodruff, 10 Vroom 72, this'court declared the rule to be that the writ of certiorari could not properly be ■used to remove for review steps in a procedure preliminary to final decision, except where the court issuing the writ could ■continue the proceeding to completion. In the Court of Errors (Hoxsey v. Woodruff, 10 Id. 489), this rule was declared not to have universal force, and it was held not to apply to writs of certiorari the object of which was to review municipal action.

The rule has been applied to proceedings of associations and of militáry courts. Elder v. District Medical Society, 6 Vroom 200; Watson v. Medical Society, 9 Id. 377; Drake v. Plume, 15 Id. 362. It was also held applicable to summary proceedings under the Vice and Immorality act. Stokes v. Early, 16 Id. 478. In Mowery v. Camden, 20 Id. 106, it. was held that a certiorari might issue to bring up the action of a special tribunal proceeding summarily in a matter over-which it had not acquired jurisdiction, but the learned judge who pronounced the opinion pointed out that in this state-such a writ was deemed appropriate in criminal matters only when the object was to remove a cause to be continued in this-court.

My conclusion is that a certiorari ought not to be allowed’ to bring up a warrant of a magistrate issued upon a complaint of a criminal nature. The determination to issue the warrant is not a final determination of the matter put in litigation by-such a complaint. Nor can that matter be pursued in tliiscourt, at that stage of the proceeding, but only before the grand jury of the proper county.

If such a warrant has been issued by a magistrate in a matter neither really nor colorably within his jurisdiction, the person aggrieved thereby may recover damages from him in a. civil action. Grove v. Vanduyne, 15 Vroom 654.

If the matter be colorably Avithin his jurisdiction, the-person affected by his action must await the action of the-grand jury upon the complaint Avhich gives color to the-jurisdiction.

The result is that this writ should be dismissed, and no-opinion will be expressed as to the sufficiency of the complaint or the correctness of the w’arrant.  