
    THE WASHINGTON MARKET COMPANY v. BENJAMIN W. SUMMY.
    At Law. —
    No. 15,956.
    On the argument of an appeal from an order of the special term quashing a writ of certiorari, it is irregular to read an ex-parte affidavit of the magistrate before whom the case was tried. If the return is defective, there must be a motion for a further or amended return to the writ.
    STATEMENT OE THE CASE.
    Certiorari to justice of the peace. The suit was instituted against the defendant for the possession of certain stalls in the Centre Market, under the landlord and tenant act, before K. V. Hughes, one of the justices of the peace for the District of Columbia. The defendant appeared and filed an affidavit for the removal of the cause to the nearest magistrate. Thereupon it was sent to Charles Walter, Esquire, who was not the nearest magistrate, who took jurisdiction and rendered judgment therein. Walter made return to the writ at the special term, and, on motion of plaintiff’s attorney, the writ was quashed and an appeal taken to the general term. At the argument in this court plaintiff’s attorney offered to read the ex-parte affidavit of said Walter in respect of the proceedings at the trial and judgment in said case. Objection to reading the same was sustained on the ground that it was no part of the return and constituted no part of the record. The opinion will show the views of the court.
    
      William Birney, for plaintiff'.
    
      John C. Fay, for defendant.
   Mr. Justice Olin

delivered the opinion of the court:

In this case a writ of certiorari was issued directed to Charles Walter, Esq., to bring up certain proceedings had before him on the petition of Benj. W. Summy, alleging that the market company bropght a suit before E. B. Hughes, Esq., one of the justices of Hhe peace of the District, and on the return day of said summons the petitioner Summy appeared and filed an affidavit for the removal of said cause of action to the nearest magistrate, viz., O. Kimmel; but the said Justice Hughes, in violation of his duty, did not send the cause to the nearest magistrate, but sent the case to Charles Walter, Esq., who took cognizance of the same and set the case for trial, and did render judgment against your petitioner' by default; and he avers that the justice was without jurisdiction in the premises, and that his judgment was erroneous and void. The return made to this writ was defective in very many respects, as appears by the affidavit of C. Walter, the justice before whom the cause was tried. And the return to the writ in this case is attempted to be supplemented by the affidavit of the justice before whom the cause was tried. This we think wholly irregular. If the facte sworn to by Justice Walter be true, there is no ground for a writ of certiorari in this case. The judgment of the court is that either party-may have liberty to apply for a further and amended return for the writ.  