Casey v. Crane & Co.

Fish, P. J. 1. Upon the hearing of a certiorari a judge of a superior court can décide such questions only as are raised by proper assignments of error in the petition and verified by the answer, or as are made by motion in reference to the certiorari proceeding itself. Accordingly, the judge of the superior court, upon the hearing of a certiorari sued out by the plaintiff in an action in a magistrate’s court, properly overruled a motion to dismiss the plaintiff’s original case. 2. A plea of breach of warranty or recoupment to an attachment for purchase-money, in a justice’s court, need not be in writing. 3. When the evidence is conflicting, the discretion of a judge of the superior court in granting, upon certiorari, a first new trial will not be controlled. Judgment affirmed. All the Justices concur.