Opinion
(Spring Riding, 1803.)
1. Where the jurisdiction of the Superior Court is not taken away by express words, and no appeal is given expressly by law, a certiorari is the proper remedy.
2. If a certiorari be obtained on an affidavit stating the grounds of moving for a new trial, which is not contradicted by counter-affidavits, there shall be a new trial.
REARDON had entered and paid for a tract of vacant land, and his grant was suspended by Guy. This suspension was tried in the County Court of DUPLIN, and a certiorari was obtained by Reardon.
And now Jocelyn objected that the act of Assembly had denied an appeal; and this Court cannot issue a certiorari, for that is to exercise appellate jurisdiction as substantially as if it had come up by appeal.
The jurisdiction of this Court cannot be taken away but by express negative words. Where an appeal is not allowed by law, a certiorari is the proper remedy; for suppose injustice done in the proceedings either by the Court or jury, must the party have no relief against it because he is not allowed an appeal? No, surely. He shall then have such remedy as suits his case, and a certiorari has been used as the proper one for many years back. This certiorari was obtained on an affidavit stating the grounds of requiring a new trial. That is not contradicted by any cross-affidavit, and is to be taken as true. Therefore, let a new trial be granted.
NOTE. — Upon the first point, see Allen v. Williams, 2 N.C. 17; Fryar v. Blackmore, post, 374; Street v. Clark, 1 N.C.; Perry v. Perry, 4 N.C. 617; Dongan v. Arnold, 14 N.C. 99; Swaim v. Fentress, ibid, 601.
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