13 Wend. 664 | N.Y. Sup. Ct. | 1835
By the Court,
The first question is whether the delivery of the certiorari was a stay of proceedings. Ic is said in Bacon's Abr. tit. Certiorari, G., that it is clearly settled, that after a certiorari is allowed (i. e. received) by the court below, all subsequent proceedings on the record are erroneous. So in Comyn's Dig. tit, Certiorari, E.: If a certiorari be delivered to a justice of the peace, or other justice to
The case of Case v. Shepherd,2 Johns. Cas. 27, is the first in our reports, where the question appears to have arisen in this court, as to the effect of a certiorari as a supersedeas to the powers of the court to which it is directed. The defend
There can be no doubt, therefore, that the service of the 'certiorari, unaccompanied by any qualification, would have suspended the powers of the commissioners to whom it was directed, and also of the corporation. Their subsequent acts, by way of resolution to proceed, would have been a contempt ; and their proceeding, by their agents, to prostrate the fences of Patchin, for the purpose of opening the street, would have been not only a contempt, but a trespass. Whether, under existing circumstances, they are trespassers or not, isa question which I do not intend to discuss or decide; but whether they have been guilty of a contempt, is the very point now to be decided. If the defendants have been guilty of any contempt, it is towards this court, and they are to be punished for it by fane and imprisonment; but this is not a case where an attachment can be used as a civil remedy by the plaintiff in the certiorari. His remedy, if any, is by action ; he is no farther concerned in the question of contempt, than as it in
In my apprehension, no injustice is or can be done to the plaintiff. His property is deemed, by the authorities of Brook
Motion denied.