Parish v. New Domestic Sewing Machine Co.

[160] The opinion of the court was delivered by Garrison, J. This cause was presented upon the brief of the counsel for the prosecutor, whose argument is based upon the assumption that the court will accept a stipulation of counsel in lieu of the certification called for by the writ of certiorari. The practice in this respect is indicated in the following cases, among others: Lane v. Ocean Grove, 29 Vroom 123; Monitor Lodge v. Goldy, Id. 119; Staten Chemical Co. v. Miller, 29 Atl. Rep. 316; Lloyd v. Richman, 28 Vroom 385. In South Brunswick v. Cranbury, 23 Vroom 298, Mr. Justice Van Syckel details the practice in extenso. It is observed in the case.in hand that an appeal had been taken to the Essex Circuit Court prior to the time when that feature of the District Court act was declared to be unconstitutional. Inasmuch as a state of the case was authorized by that act when an appeal was taken to the Circuit Court, it is probable that counsel for the prosecutor failed to note the difference between such statutory practice and the established practice in this court upon certiorari. Instead, therefore, of affirming the judgment that is brought up' by the judge’s return, the ease will be held for thirty days, in order that a proper return may be perfected. If, at the expiration of that period, no such return has been laid before the justices who heard the cause, judgment below will be affirmed.