
    *Cornelius L. Ball against Garabrant Van Houten.
    On certiorari, to Justice Oshea Wilder late of Essex county.
    
       Return of ^herc^justice has left the
    Mr. Halsey
    
    presented to the court, an affidavit of Cornelius Van Giesen, stating in substance ; that the certiorari, was left at the house of the justice, in Patterson,, before last September Term; that his wife then said he was home, but she would deliver it on his return; that a rule on the justice, to return the writ, has since been served upon him; that he refused to make return, declaring, that he had removed from New-Jersey to New- York, was about to resign his commission, and had given up his docket, to be placed in the clerk’s office of the county, where it then probably was; and that he could not, and would not be at the expense and trouble of going there, to make a transcript; and that the said docket is now in the clerk’s office of Essex county.
    Upon this affidavit, was grounded a motion, that the clerk of Essex, do make return to this court, of a transcript of the judgment in the above cause.
    
      
      
         Cited in Tichenor vs. Hewson, 2 Green 29.
      
    
   But by the Court.

From the facts proven, we find no Maches in the plaintiff, in certiorari; and having done every thing required of him, he ought not to be deprived . of his remedy, by circumstances which he could not govern or control. He must in some way, have a return to his writ. But the justice cannot now make the return. He is no longer a justice, nor inhabitant of the state, nor has control over the record. Nor is it perceived that the court can grant the present motion. Were the justice dead, and the docket deposited in the clerk’s office, agreeably to the 39th section of the act, constituting courts for the trial of small causes, there would be no difficulty. The clerk might then make a return; but his power does not extend to a case like the present. Another course must therefore be adopted. Let the party take from the docket of the justice, a true copy of the record, annex it to the writ of certiorari, return it to the court, and by proper and competent affidavits, prove, that it is a copy of the record.  