1 Cole. & Cai. Cas. 438 | N.Y. Sup. Ct. | 1805
The last objection is a captious attempt to take advantage. The period at which the sittings were held, was a matter of general notoriety. The day of the month was right. and though that of the week was wrong, it could not, as the plaintiff’s counsel have remarked, mislead, and must therefore be rejected as surplusage, for it was not necessary to state it. With regard to the regularity of the practice adopted, it is settled, that upon a certiorari in a civil suit, we must proceed as the court below would have done, and consider the cause in the same state here, as it was there. On the return of the writ therefore, the cause was at issue, and nothing more required than to notice for trial. On a habeas corpus, the history of the cause is sent up j on a certiorari, the record itself. We cannot attend to the statement of the return, that it is only a copy which has been transmitted. In the eye of the law, this is the record ; and its being called a copy in the return, cannot make us consider it otherwise. In the analogous case of a writ of error, urged on the argument, the transcript only is before the court of kings bench. But it h always regarded as the record itself. Rex. v. North 2 Salk. 565, The same principle governs the present case. Nothing is shewn to take it out of the general rule. If there are merits, they ought to have appeared on affidavit. This not being done, we must hold to strict practices and deny the motion.
