323, 3 N. W. Rep. 991; Phillips v. Thralls. 26 Kan. 780. But when the return of Ex-Justice Kuhn was received, the defendant moved the court to quash the supplemental writ and return upon the following grounds, among others: First, that the writ of certiorari cannot be directed to an ex-official after he has parted with the record that is sought to be reviewed; second, that a parol return made by an ex-official is not competent to contradict the record kept by him at the time of the transactions. This attack was unsuccessful in the district court, and the defendant brings the questions to this court by appeal.
The points above specified were well taken, and the motion should have been sustained. To sustain the position that the writ of certiorari may be directed to an ex-officer after he has parted with the record respondent relies upon Harris v. Whitney, 6 How. Pr. 175, and Conover v. Devlin, 15 How. Pr. 470. The cases do not go far enough. There is no allusion to the real point here. Those cases do hold that the writ may. run to an ex-officer, but there is no suggestion that such ex-officer was not in each of those cases in possession of the record to be reviewed. On the contrary, in Conover v. Devlin, the writ directed the ex-officer “ to certify to this court the proceedings had before him in this matter and the record thereof” (the italics are ours), thus clearly showing that such ex-officer had the record in his possession. And to support the position that the writ was properly directed the court quote the following from Bac. Abr. “Certiorari,” F: “If the person who ought to certify a record, as a justice of the peace who hath taken a recognizance, or a judge of nisi prius who hath taken a verdict, or a coroner who hath taken an inquest, die with the record in his custody, the certiorari may go to his executor.” Certainly that authority would never be cited to show that the writ could run to one not in possession of the record. Neither can it be said from what appears in the case that the party to whom the writ was directed was not in the possession of the record in Harris v. Whitney. There was in that case no motion to quash the return, but it was claimed that the return was a nullity on the authority of Peck v. Foote, 4 How. Pr. 425, where the court held that the return was an official act, and could only be made
