case Woodcroft against Kynaston in chancery Trinity term Geo a certiorari may  be return in chancery and send to the king bench or common plea by mittimus or  it may be return immediate into those court S c atk Hardwicke Lord chancellor  this be a motion either to quash or supersede a writ of certiorari issue out  of this court and direct to the mayor and sheriff of London in order to move a  replevin depend in the mayor court of London the writ be test the nine of  February and returnable in fifteen day after easter into this court so that it  be not return yet and if it be to remove the tenor of the modern report er p  record and process and not to remove the record itself the objection as the  ground to quash or supersede this certiorari be two the first that it be make  returnable into this court whereas it shall be return either into the court of  king bench or common plea immediate and it be say that the admit writ of this  kind to be returnable in this court will introduce vast delay for when the  record be return here it must be send formal by mittimus into the commonlaw  court the second objection be that suppose this certiorari may issue out of  and be returnable into this court yet in the present case it have issue  erroneous for it be not to return the record and process itself but only a  tenor of it as to the first objection that such certiorari ought not to issue  returnable in this court but into some court of law though I do foresee that a  proceed of this kind be liable to delay and to be avoid if possible yet I be  of opinion that the writ as to that error be a good writ in the case of action  in replevin there modern report be several way to remove they out of inferior  into superior court in the county court which be not a court of record it be  to be remove by pone or to think over either at the instance of the plaintiff  or defendant the plaintiff may remove the action without cause because it be  his own suit but the defendant can do it without cause because it tend to the  delay of the plaintiff in the hundred court or in the court of any private  lord which likewise be not court of record action be to be remove by a to go  to ad curian but not without cause by the plaintiff or the defendant because  such removal tend to the prejudice of the profit of the lord out of who court  the cause be remove all these three method be to remove action out of court  which be not of record but in replevins in court of record they can be remove  by any of the say three writ but they must be remove by certiorari for there  be no other method of remove record out of court of record but by writ of  error after judgement and by certiorari before and record may be remove either  by certiorari out of this court or the king bench and there be precedent to  prove both treasurer short catalog and as a certiorari may either issue out of  this court or the king bench so it may issue out of this court and be make  returnable either into this court the court of king bench or common plea f n b  the new quarto edition and of the old edition where it be say that the writ of  certiorari be a original writ and issue sometime out of the chancery and  sometime out of the king bench and lie where the king will be certify of any  record which be in the treasury or in the common plea or in any other court of  record then the king may send this writ of certiorari to any of the plead or  in any other court of record then the king may send this writ of certiorari to  any of the say court or office to certify such record before he in banc or in  the chancery or before other justice wherever the king please to have the same  certify this be the law in this case as to the delay these proceed by  certiorari be liable to that and at commonlaw they be liable to great delay  and therefore the court of king bench have make a rule to expedite the payment  of cost in a certiorari issue out of that court and it will be very necessary  in conformity to they to make some rule here to speed these proceed and that  some short time may be fix for a procedendo to go of course I have the  cursitor with I who tell I when the defendant have a mind to delay the  plaintiff he apply to this court for a certiorari returnable in this court for  then it will require some time to have it send into the king bench or common  plea by mittimus and beside the proceed in replevin be more liable to delay  than other action for there be first of all a bind give to the sheriff for a  return if there shall be judgement against the plaintiff and if there be  judgement in favour of the defendant he may proceed upon the bind which be a  due action or he may have a writ of retorno to have and turn the plaintiff  round that way and if a elonga be return there be only a proceed modern report  by a capias in withernam therefore as to the delay which will be cause by have  the certiorari make returnable into this court I can quash or supersede it for  that as there be precedent to support and all proceed in replevin be liable to  delay the second exception be that this certiorari be erroneous or have  because it be not to remove the very record and process but the tenor of they  only and upon this objection I be of opinion that this writ ought either to be  supersede or quash for I think it shall be to remove the record itself there  be a great difference modern report er p between the record itself and the  tenor of it for the tenor be only a transcript or copy of a record although it  must be a verbatim or literal one and it have be determine in the case of  libel that pron  interrog  tenor sequitur c must be literal and comprehend the  very word themselves and as this writ of certiorari in the present case be to  remove a cause of action out of a inferior court to be proceed upon in a  superior one it ought to remove the record itself for no proceed can be upon  the tenor what will be the consequence a defect of justice for by this mean  there can be no proceed either in the court above or below not in the court  above because it have only a tenor of the record and not the record itself  before they yet a certiorari close their hand and supersede all their proceed  and there be a difference between a certiorari and a habeas corpus the latter  may return the body into a superior court with the cause of detention without  return any record of the inferior court because when the body and cause be  return into a court of superior jurisdiction you begin and declare de to make  new but where a cause be return by certiorari you proceed upon it in the same  state it be in the court below which you can do without see how it stand upon  the record itself this present certiorari have be frame by a certiorari for  another purpose for in some case it be enough to remove the bare tenor of a  record and from such precedent the present certiorari have be draw as if a  action be bring in all inferior court upon a judgement obtain in a superior  one as it well may and nul tiel record be plead the court below can have this  record but by certiorari out of this court but in those case which the tenor  of the record will do for they do not want the record itself but only a  evidence that there be such a judgement in the court of record above by a  authentic copy under the seal of the court but when a cause be remove out of a  inferior into a superior court to be proceed upon there you must necessary  have the record itself and if the certiorari direct only the tenor of the  record to be return it will be erroneous in Fitzherbert a Fitzherbert nat  short catalog a and in the commentary or note upon the new edition b hale edit  f n b b which note be say to be Lord hale and it be very probable from their  great learning and accuracy that they be his it be contain thus modern report  if one bring debt on a recovery in a inferior court as in a court of piepowder  c there it be not necessary for the party to have the record itself that be a  profert in cur or the tenor of it so if one bring debt in the common plea on  damage recover in the king bench or in the court of Norwich but if nul tiel  record be plead in the court below it be sufficient if the tenor of the record  be remove by certiorari into chancery and send thence by mittimus a see  yearbooks Henry pl Henry pl a but where one be to sue execution of record of  another court as where it be to sue execution in common plea on a recovery in  a ancient demesne or before justice of assize or oyer and terminer there the  record itself ought to be remove c and no execution can be on the tenor of a  record Edward so there be a difference where you only want evidence of a  record and where you be to proceed upon it whether as to a declaration plea or  as to take out execution in the register b there be a precedent of a  certiorari to remove the record and process in a judgement in assize of novel  seize and which be send by mittimus into the common plea and it be not course  but process et record to the point of return the record or only the tenor of  it there be two case in Salkeld in the first b king v north salk Mod b holt  chief justice say it be a error in the clerk in London that upon a certiorari  they return only a transcript as if the record remain below for in the common  plea though they do not return the very individual record yet the transcript  be return as if it be the record and so it be in judgement of law in the  second c the queen v the parish of saint mary in the Devizes salk see also  hawk p c c S c on a certiorari to return a order it be return pron  interrog   indeed tenor sequitur in hc word and not who indeed ordo sequitur and it be  quash to this reason upon all these authority and these reason I be of opinion  that this writ of certiorari be erroneous and modern report er p then another  question grow whether it be to be quash or supersede and I can quash it  because no writ can be quash but when it be return and appear defective upon  the record but the present certiorari be not return yet so not appear upon  record in the case of sir John sharp v mayor of London d Gilbert d upon a writ  of mandamus a mandamus be take out direct to the mayor c of London by their  corporate name it be move to quash it upon a misdirection or mistake in the  corporate name and after it have be solemnly argue the judge deliver their  opinion seriatim and the court be divide but when the modern report cause come  to be argue by the bench Mr justice Eyre say they can not quash the writ  because it be return and before the court and that they can only quash a writ  upon a defect appear upon the record and that the rule must be to supersede  this writ and though the court differ as to the point of misdirection yet they  all agree that they be to supersede and not to quash the writ so this  certiorari must be supersede