The People against Forward and Day

The People against Forward and Day. The defendant sued out a certiorari tc remove an indictment from the sessions to this court, which had been returned by the sessions without the defendant having given bail as required by statute, (1 R. L. 141, s. 4,) and a commission to examine witnesses had been issued under the direction of this court; but because nc bail was in, a procedendo was ordered. The defendants were indicted at the Oyer and Terminer in Erie county, July, 1821, for publishing a libel. They pleaded not guilty, and the indictment was remanded to the general sessions of that county; but the defendants b ought a certiorari to remove the indictment to this Court. This writ was granted, on motion, in August term, 1821. The general sessions, at their August term of the same year, received the writ, and directed a return to be made, without requiring the defendants to give bail; nor did the defendants themselves enter into recognizance, as required by the statute. (1 R. L. 141, s. 4.) At the January term of this Court, 1822, the defendants obtained a rule that all proceedings be stayed until the public prosecutor should consent to the issuing of a commission to take the testimony of foreign witnesses, a copy of which rule was served on the District Attorney of Erie, on the 23d day of May thereafter. On the 5th day of May, 1823, the defendants, on filing a stipulation in writing to that effect, signed by them and the District Attorney, with the Clerk of this Court in Utica, caused a rule for a commission to be entered, to examine certain witnesses named therein, agreeably to the rules and orders of this Court, and to be, subject to the same rules ag wpell obtained in á civil cause; but they had not proceed ed to issue the commission ; and nqw, J. King, in behalf of Mr. Potter Dist. Attorney of Erie, moved for aprocedendo, on the ground that no bail had been given to warrant the yrrit of certiorari. He. cited 1, R. L. 141, s. 4; id. 142, s. 6. P. S. Parker, contra, said the only question was, whether the Court would interfere. The statute is plain, that a recognizance must be entered into, or the writ is unavailing, and the Court below must proceed of course. [MAJORITY — Curia.] Curia. Take your rule for a procedendo. Rule granted.