
    ROBERTSON versus McKINSTRY, CALHOUN, and ANDRÉ
    May 19, 1826
    
      Alexander D. Fraser, attorney for defendants (plaintiff’s in error).
   [OPINION]

Robertson vs McKinstry, Calhoun and André—

Judg4 entered on virdict for' the Pltff. by Wayne County Court at the June Term of said Court in 1825— Application by Defts for a writ of error & supersedeas thereon, to remove said Jug4 into the Supreme Court for error alledged by the C. C. in rendering said Judg4— The record of said action accompanied with a petition for said writ in the form of an assignment of errors, addressed to the Judges of S. C. or any one of them, exhibited to S. Sibley May 18th by Mr Fraser— The exhibits are unaccompanied by an affidavit shewing Cause for issuing said writ—

Quere Can a Judge allow a writ of error without affidavit?

In the act of Congress of the 3d of March 1823, 3d Sec4. It is enacted “that the powers and duties of the Judges of the Territory shall be regulated by such laws as are or may be in force therein” excepting therefrom any special Jurisdiction that has or may be conferred by acts of the U States—

By the act of the Terry of the 213 of Apl 1825. which purports to organize and difine the Powers and duties of the Supreme Court, and of the Judges at their chambers, is the follow provision— “And either, of the Judges of the Supreme Court, in vacation shall, on good cause shewn, by affidavit, have power to allow writs of Error, supersedeas & certiorari, also to grant writs of Habeas Corpus ad subjiciendum”— 2d Section— As the legislature of the Territory under the authority of the act of Congress, have defined the Powers of a Judge of the S. C in reference to granting a writ of error and supersedeas, and by their act have restrained his, common law powers of Judicial Discretion to proof by affidavit, still he is bound by the Law whatever may be his opinion as to the propriety of the enactment— A writ of error has been considered in our Country, as a Beneficial writ, and claimed as writ of right, to which every citizen, was entitled upon a proper Case made out, subject to such conditions, however as the statute might prescribe as well in issuing it as in its use— I am not aware that any statute in England or America, has gone so far as the Law of the Territory, or that it is granted or withheld according to the facts disclosed on affidavit— I am inclined to believe that the enactment, as applying to a writ of error, was unintentional— Yet as it stands I do not feel myself warranted, in saying, that it was not intended to embrace a writ of error as well as the other writs mentioned— The powers and authority of a single Judge in vacation, are properly, the subjects of of statute regulation— Without special enactm43, his Judicial powers are extremely limited, if they exist at all, and when prescribed, by Law he must pursue them— I cannot therefore sustain the present application—  