ally before any court, the inability, from sickness or otherwise of such person to attend such court personally, shall be a sufficient excuse for not bringing him before such court. Nor shall any such officer be required, in any case, to confine any person arrested upon an attachment to answer for misconduct, in any prison, or otherwise to restrain him of personal liberty, except so far as shall be necessary to secure his personal attendance."51 51 Ib. s. 37. p. 540. CHAPTER XIV. OF THE REMOVAL OF CAUSES FROM A COURT OF COMMON PLEAS, OR Formerly actions might have been removed from courts of common pleas into the supreme court, either by certiorari, or in certain cases by habeas corpus. But it is now provided by statute, that no civil action in a court of common pleas, or mayor's court, shall be removed before judgment, by any writ of habeas corpus, or by any other writ, or in any other manner, than as prescribed by statute.2 A certiorari is a writ directed to the judges of an inferior court, commanding them to certify or to return the records of a cause depending before them.3 In what cases.] The statute provides, that "all personal actions which may be pending in any court of common pleas, except in the city and county of New York, or in any mayor's court, where the debt or damages claimed or the matter or where debt thing in demand, shall exceed the sum of two hundred and exceed $250. fifty dollars, may be removed into the supreme court, by a writ of certiorari, at the instance of the defendants in such 1 As to the removal of actions from state courts into the circuit court of the United States, see ante, Vol. 1. P. 272. 2 R. St. P. 3. Ch. 7. T. 2. s. 14. Vol. 2. p. 390. 3 1 Tidd. Pract. 399. Jae. Law Dict. Tit. Certiorari. 4 R. St. ib. s. 1. Vol. 2. p. 389. or damages $500, actions."4 And that "all such actions, which may be pending And in the in the court of common pleas of the city and county of New city of N. Y. York, in which the debt or damages claimed, or the matter or thing in demand, shall exceed the sum of five hundred dollars, may in like manner be removed into the supreme court."5 Where action on bond. In certain other cases. How directed. If the action is brought upon a bond or other instrument, with a condition for the payment of money, the actual sum due, with the interest thereon, is to be deemed the amount of the debt claimed." It is further provided, that "the following actions may be removed by certiorari, at the instance of the defendants therein, whatever may be the amount of the debt or damages claimed, or the value of the matter or thing in demand, viz. "1. Actions in which the people of this state shall be interested: "2. Actions by or against the corporation of any city: "3. Actions of ejectment, and all other actions in which the title to real estate shall come in question: "4. Actions for replevin and for false imprisonment."" By a subsequent provision in the same title, "no certiorari, habeas corpus, or other writ or proceeding, shall issue or be allowed, to remove into the supreme court any cause or matter which may be brought before a court of common pleas, or before the county judges of a county, by appeal from a justice or justices of the peace, or by appeal from commissioners of highways, or from any other officers, until after the final determination thereon by such court, or by such judges.""101 Requisites of writ, how obtained, and effect.] The writ must be tested, and made returnable in term; and must be directed to the judges of the court of common pleas, from which the cause is intended to be removed, commanding them 5 Ib. s. 2. 6 Tb. s. 3. 7 Ib. s. 4. to certify the record, with all things touching the same; and it removes the record, and not the testimony." Where a certiorari was to remove the tenor of a record, it was superseded as erroneous; for being to remove a record out of an inferior court, in order to be proceeded upon in a superior one, it ought to have been to certify the very record; for otherwise, no proceeding could be had upon it.101 may be If the writ be misdirected, or otherwise bad in point of law, Where writ the court will order it to be quashed, if before them, or if not quasher. returned, will grant a supersedeas; but the court cannot quash a writ that is not before them.10 And though the parties to whom the certiorari is directed, and in whose keeping the record is, may object to make a return to it on account of an informality in the direction, yet they having in fact returned it into the court above, no such objection can be taken by third persons.11 tained. A certiorari to remove a cause from a court of common pleas, How abmay be obtained on application to a justice of the supreme court, a circuit judge, supreme court commissioner, or other officer authorized to perform the duties of a justice of the supreme court in vacation,12 founded upon an affidavit specifying the nature and amount of the plaintiff's demand or cause of action.13 All the defendants, if there be more than one who has appeared in the action, must join in the application. 14 The statute further provides, that "such writ shall not be Filing writ. effectual to remove any cause, unless it be filed in the office of the clerk of the court in which such action is pending, after the defendants shall have duly appeared in such action, by entering and perfecting special bail therein, if such bail shall have been required, nor unless the same be so filed before in Notice. Effect of writ. terlocutory or other judgment entered in such action, and before any of the jury summoned to try any issue thereon, shall have been sworn."15 If a certiorari be allowed in an action wherein an issue of fact has been joined, it must be filed in the office of the clerk of the court at least eight days before the first day of the term at which such issue of fact might be tried, according to the practice of the court: if it be not filed within that time, the writ will not be effectual to remove such cause, unless the defendant pay to the plaintiff all costs incurred by him in noticing such cause for trial, if the same shall have been noticed; which costs must be taxed by the court in which the action is pending.16 Upon a certiorari being filed, notice thereof must be immediately given to the adverse party; and until such notice be given, the filing is of no force or validity." The writ of certiorari, when duly issued and delivered to the judge or judges of the court below, instantly suspends their power, so that if they afterwards proceed, they are liable to an attachment,18 and their subsequent proceedings are void.101 But if the writ be issued contrary to, or without the party prosecuting such writ, complying with the provision of the statute, it seems that the court below may proceed as if the writ had not been issued. 102 Thus, if it appear from the face of the plaintiff's declaration that the demand is certain, so that he cannot in any event recover two hundred and fifty dollars, the court may proceed notwithstanding the certiorari, though the |