People v. Townsend

who presided at the trial, now reports to the court that the verdict was against evidence, and that it was given on grounds not pertinent.

There must be a new trial: and the judge who may preside at the next oyer and terminer in Dutchess, will communicate this opinion to *74the judges of that court. In the mean time, the deJ ° fendant must give bail for his appearance.

The proceedings which have been brought up by certiorari, not having been actually received, must be returned. If they had been filed here, they could not be sent back to the oyer and terminer ; no form of process for such purpose is to be found in the books ; but the court must have proceeded to try the defendant at bar, by a jury returned from Dutchess, or have sent the cause down to the next circuit to be held there. The court incline to the opinion, that in a capital case it would be otherwise, ánd that no such case could be sent down for trial.

suggested, that a certiorari for bringkig up the proceedings in like cases, ought only to be allowed in open court,