Durkee against Brackett, q. t

*Durkee against Brackett, q. t If a Justice of the peace, in a cause before him, admit a plaintiff to be sworn and testify as a witness in his own cause, this court will grant a rule, or certiorari, as the party may be advised, to have that matter returned. This was an application for a rule, or certiorari, to be directed to the justice of the peace before whom the cause was tried, requiring him to certify whether Ichabod Brackett, the plaintiff before him, was not by him permitted to be sworn as a witness, and testify in his own cause. Harison, in support of the motion. As no bill of exceptions will lie in this case, the injury will be without remedy, unless the court, by virtue of their superintending jurisdiction, please to interpose. This they have authority to do from their general controlling power. This differs from the applications to return evidence, because there it would be to assume a right to determine on facts, matters cognizable by a jury alone. The granting of a certiorari is not confined to reasons that appear on the record. In 4 Yin. 842, letter D. pi. 7, tit. Certiorari, the writ was allowed, to inquire whether the defendant, who had pleaded his protection as the Icing's servant, was attending on the Icing for his own business, or the Icing's. Henry, contra. This is, in substance, to bring up the fact; and this court has decided it will not oblige a justice to return evidence., 1 Rev. Laws, 316. The words of the act are, “When any one who is Impleaded before any judges or justices, doth allege an exception,” &e. Therefore, qtmre as to this, and see 2 Inst. 427, (2). By Laws N. Y. sess. 28, April 9th, 1808, c. 93, s. 3, he must return specially as to the facts set forth in the affidavit on which the certiorari is granted. See Schoonmalcer v. Trans, 2 Caines’ Rep. 116. See Code of Procedure, secs. 360, 362. In Church v. Hubbart, on error from the district court of Massachusetts, 2 Cranch, 239, a question was suggested by Chase, X, whether a bill of exceptions would lie to a charge given by the judge to the jury, unless on a point upon which the opinion of the court was prayed; doubting whether it would within the statute of Westminster. Marshall, Ch. X, thought it would, observing, that if in this country the question could not come up by a bill of exceptions from a district court, the party would be without remedy. [MAJORITY — Per Curiam.] Per Curiam. Take your rule, or certiorari, as you may be advised. Motion granted.