1776.
April Term, 1776.
| Before | Chew, Chief Juſtice. |
| Lawrence, Juſtice. |
Steiner verſus Fell and others.
Plaintiff brought an action of debt on an arbitration Bond in Bucks County, Common Pleas. Defendant pleaded null award. Plaintiff replied, and ſet forth an award. In September Term, 1775, Plaintiff got a rule for rejoinder in ſix weeks, or judgment. Before the ſix weeks expired, defendant’s attorney gave him a rejoinder, and, at the ſame time, ſhewed him a Habeas Corpus, by which he intended to remove the cauſe to the next Supreme Court. Plaintiff, chuſing that the proceedings ſhould go up above, as they were below, took out a Certiorari, and, going into court the first day of the term, got it allowed—The next day the defendant preſented the Habeas Corpus, to which plaintiff’s attorney objected, for that the record was removed by the Certiorari—The Court below agreed to ſend up both writs, and let the Supreme Court receive the record on which they pleaſed.
Now it came on to be argued, and the plaintiff’s council contended, that the record ſhould be received only on the Certiorari; Firſt for that, when the other writ was preſented, there was no record before the court, on which the Habeas Corpus could operate, and that the power of the court below was exerciſed. Secondly, that if that could not be allowed, yet both writs might be returned reddendo ſingula ſingulis; the Certiorari might remove the cauſe, and the Habeas Corpus the body; and there was no inconſiſtency in ſo doing.
The defendants council reſted it on the advantage taken of him, and on the conſtant practice of the court with reſpect to writs of removal.
By the Court. Whenever a writ iſſuses fairly, if it is firſt delivered it ſhall take preference—The proceedings, on a Habeas Corpus are de novo; on a certiorari, the court proceed on the ſtate returned. Therefore, both writs cannot iſſue in the ſame cauſe; for the court cannot proceed de novo and on the old record too; which upon the idea of returning both writ muſt be done. In this caſe, the defendant not having affected delay, but proceeded in the
