20 Wend. 103 | N.Y. Sup. Ct. | 1838
The return states not only the affidavits, process, &c., but all the evidence on both sides, with the charge to the jury and even the summing up of counsel. We are accordingly appealed to, as is usual upon such returns to re-try the issue which has been passed upon by the jury under the direction of the justice. Certain results are insisted upon as established by the evidence, which is detailed in the order of the witnesses, as it would have been on a case for a new trial, because the verdict was against the weight of evidence. In analogy to the proceedings by certiorari, under the fifty dollar act, an affidavit was made stating the evidence, and on this the certiorari was allowed. It was served upon the justice who has returned specially to all its details, and annexed a copy of it to his return. Copies of the indenture of lease, with assignments, and accounts current are added in hac verba.
Those parts which properly enter into the frame of the record in the court below, are, with the exception of the affidavit, admitted to be sufficient and regular. They alone are the proper subjects of a-return, and therefore are all which we can legally notice, according to the case of Birdsall, v. Phillips, 17 Wendell, 464. I admit that this court is, in some measure, responsible for the extent of territory, which the present and like common law certioraris have for some time occupied, by the facility with which, in some few cases, where the objection was either not
There is certainly one class of English authority, which we did not much consider in that case, and which without being also distinguished from it, may mislead. I allude to the cases which hold that in all summary convictions upon penal statutes, you must state the evidence. These cases are fully collated by the English treatises on penal convictions, and need not be particularly referred to. Boscawen, 68 to 108, tit. Evidence. Nares, 19 to 28. The result as given by Mr. Nares is, a It must appear the party is legally convicted j therefore the evidence must be regularly set out at large, in order that the court may judge whether the justice has convicted upon proper evidence, and this both the evidence against and for the defendant • and the best way of stating it, is to state it in the language of the witness, and particularly the fact as proved, as Lord Hardwicke in Rex v. Lloyd, 2 Sir. 999, says it is fully settled in convictions that the evidence must be set out.” Nares, 19. Mr. Nares adds, however, even in this case, that the magistrate is the sole judge of the weight of the evidence j and the court of king’s bench will not examine whether he has drawn the right conclusion j but if no evidence appear in the conviction to support a material part of the information, the court must quash the information. Nares, 28. These positions we do not mean to question, and did not in Birdsall v. Phillips. But as to orders and other adjudications, the case is altogether different; and in the very decision relied on by Nares, Rex v. Lloyd, Lord Hardwicke himself acted upon the distinction. There a statute had
The only part of the return, therefore, that we are properly called on to examine, is the affidavit) and this is objected to as having been made by the agent, without rendering any excuse why it was not made by the principals or either of them. The
It is more doubtful whether the affidavit disclosed, with sufficient particularity, an agreement by which the lessors were entitled to re-enter for non-payment of rent on the failure of an adequate distress. Ho point upon that is made now, however; and none was made, that I see, in the court below. The indenture of demise containing a clause of re-entry for simple non-payment, is annexed to the return ; and, under the circumstances, perhaps, we ought to intend that it was presented to the justice in connection with the affidavit as part of the proof upon which he issued his summons.
Proceedings affirmed.