Harlow v. Rosser, Scurry & Co.

[221] By the Court. Lumpkin, J., delivering the opinion. 1. Was it error in the court to refuse to dismiss the certiorari in this case, because there had been a previous certiorari in the same case which had been dismissed ? We think not. It does not appear that the former certiorari was decided upon its merits. We take it for granted it was not — but that it was for some informality or defect in the proceedings. 2. Is it indispensable that the clerk should endorse upon the petition for certiorari, “ filed,” at such a time ? We are of the opinion that it is not. 3. The present writ of certiorari is dated the 15th of April, 1858 ; and the answer of the magistrates is to' a writ which purports to be dated the 9th day of February, 1858. And their return bears date the 23rd of February, 3858. The reading of the return was objected to on the ground that it bore date prior to the writ of certiorari to which it was a response. The explanation of this auacronism is this: The justices adopted and sent up their response to the.first certiorari as their answer to this. Suppose the objection were sustained, the only effect would be to require the justices to answer over; and thus delay the case, without being productive of any compensating benefit. 4. The j ustices allowed a debt due by Harlow to Rosser, Scurry & Co., to be discharged by crediting the amount on an account due him by Thomas S. Hopkins, one of said firm. The circuit judge held, and of course correctly, that this could not be done ; and sustained the certiorari on that ground. The contract of copartnership invested Hopkins with no such right, and no special authority was shown to have been conferred on him to that effect. The transaction, from ought that appears to the contrary, was without the knowledge of the other partners, and without any sanction or ratification on their part. Judgment affirmed.