Page:United States Reports, Volume 1.djvu/33

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22
CASES ruled and adjudged in the



1776.

April Term, 1776.


Before CHEW, Chief Justice.
LAWRENCE, Juftice.




STEINER verʃus FELL and others.

P

LAINTIFF brought an action of debt on an arbitration Bond in Bucks County, Common Pleas. Defendant pleaded null award. Plaintiff replied, and fet forth an award. In September Term, 1785, Plaintiff got a rule for rejoinder in fix weeks, or judgment. Before the fix weeks expired, defendant's attorney gave him a rejoinder, and, at the fame time, fhewed him a Habeas Corpus, by which he intended to remove the caufe to the next Supreme Court. Plaintiff, chufing that the proceedings fhould go up above, as they were below, took out a Certiarari, and, going into court the first day of the term, got it allowed–The next day the defendant prefented the Habeas Corpus, to which plaintiff's attorney objected, for that the record was removed by the Certiarari, –The Court below agreed to fend up both writs, and let the Supreme Court" recieve the record on which they pleafed.

Now it came on to be argued, and the plaintiff's council contended, that the record fhould be received only on the Certiarari ; Firft for that, when the other writ was prefented, there was no record before the court, on which the Habeas Corpus could operate, and that the power of the court below was exercifed. Secondly, that if that could not be allowed, yet both writs might be returned rednendo ƒingula ƒingulis ; the Certiarari, might removed the cauf, and the Habeas Corpus the body ; and there was no inconfiftency in fo doing.

The defendants council refted it on the advantage taken of him, and on the conftant practice of the court with refpect to writs of removal.

BY THE COURT. Whenever a writ iffuses fairly, if it is firft delivered it fhall take preference–The proceedings, on a Habeas Corpus are de novo ; on a certiarari, the court proceed on the ftate returned. Therefore, both writs cannot iffue in the fame caufe ; for the court cannot proceed de novo and on the old record too ; which upon the idea of returning both writ muft be done. In this cafe, the defendant not having affected delay, but proceeded in the

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