Whenever a writ issues 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 writs must be done. In this case, the defendant not having affected delay, but proceeded in the *23usual course, having taken out the first writ, and delivered it as soon as was usual, his writ should take preference; and the Court accordingly order the return to be made on the Habeas Corpus.