Steiner v. Fell and others

* APRIL TERM, 1776. Before Chew, Chief Justice, and Lawrence, Justice. Steiner v. Fell and others. Removal of cause. When the defendant takes out a habeas corpus to remove the cause, and the plaintiff subsequently procures the allowance of a certiorari, the court will give preference to the prior writ. Plaintiee brought an action of debt on an arbitration bond, in Bucks county common pleas. Defendant pleaded nul award: plaintiff replied, and set forth an award. In September term, 1775, plaintiff got a rule for rejoinder in six weeks, or judgment. Before the six weeks expired, defendant’s attorney gave him a rejoinder, and at the same time, showed him a habeas corpus, by which he intended to remove the cause to the next sujireme court. Plaintiff, choosing that the proceedings should go up above, as they were below, took out a certiorari, and going into court, the first day of the term, got it allowed. The next day, the defendant presented the habeas corpus, to which plaintiff’s attorney objected, for that the record was removed by the certiorari. The court below agreed to send up both writs, and let the supreme court receive the record on which they pleased. Now, it came on to be argued, and the plaintiff’s counsel contended, that the record should be received only on the certiorari : 1. For that, when the other writ was presented, there was no record before the court, on which the habeas corpus could operate, and that the power of the court below was exhausted. 2. That if that could not be allowed, yet both writs might be returned, reddendo singida singulis; the certiorari might remove the causea and the habeas corpus the body; and there was no inconsistency in so doing. The defendant’s counsel rested it on the advantage taken of him, and on the constant practice of the court with respect to the writs of removal. • [MAJORITY — By the Court.] By the Court. Whenever a writ issues fairly, if it is first delivered, it shall take preference. The proceedings on a habeas corpus are de novo ; on a certiorari, the court proceed on the state returned. Therefore, both writs cannot issue in the same cause ; for the court cannot proceed de novo, and on the old record too ; which, upon the idea of returning both writs, must be done. In this case, the defendant not having affected delay, *23] but proceeded in the *usual course, having taken out the first writ, and J delivered it as soon as was usual, his writ should take preference; and the Court accordingly order the return to be made on the habeas corpus,