GILLELAND, use, &c. v. WARE et al., 4 Ala. 414

COLLIER, C. J. In Gray and another v. Dennis, at the last term, it was decided that a certiorari will not be awarded to remove a case from á Justice of the Peace to the County or Circuit Court, upon an allegation that an execution issued on a judgment there rendered, was irregular. But neither in that or the previous decision of Boyd v. Woodfin, [3 Stew. Rep. 357,] did it appear that a motion had been made to quash the execution; and not only the execution was suspended in its operation, but the judgment itself was removed to the appellate Court.

The case before us is distinguishable from those cited in this — here the judgment of the Justice is not complained of, nor is he inhibited pending the case in the Circuit Cóurt from issuing a proper execution thereon; here the party preju* diced by the execution complains of its irregularity, and by the Justice endeavors to have it vacated, and upon an order sus-: taming it, asks the judgment of the Circuit Court. Under these circumstances, was the certiorari properly allowed? In the Mobile Cotton Press, &c. v.

Moore & Magee, [9 Porter’s Rep. 679,] it was held to be well settled at common law, that Courts of judicature possess a controlling power over the acts of their officers and process, which it is their duty to exercise in advancement of justice. This rule does'not seem W-be confined to any court, but pertains to all, without reference*to the extent of their jurisdiction.

It is then competent for' ar Justice of the Peace to vacate, by an order for that purpose an execution issued by himself; the more especially if it has-not been satisfied, by a voluntary payment, or' the lev-y on and-sale of property; whether he could act in these- cases so as’ t& affect the rights of other persons not parties to-the procéss, we* need not inquire. If. the only evidence of Richard H. Ware being the- surety of* Bennett Ware in the stay bond, was the memorandum mudo5 by the Justice on his docket, then he should not have been a defendant in the first execution, and as to him it was'unauthor-* ized..

But that execution was not levied on his property, and consequently did not prejudice him. B. Ware could not have' been injured by having another person associated with him as a defendant, and the great indulgence extendedto-the proceedings of Justices of the Peace, should have prevented1 the entertainment of a motion by him to quash the execution. It may then be conceded that the first execution should have been -set aside as to R. H.

Ware, yet as it spent its force without affect-1 ing him,.either directly or consequentially, except soffar-as •he-voluntarily bound- himself as the surety of the- proper defend dant in -a.delivery bond, it should not afterwards- be vacateéaP his instance.as to- Bennett Ware. From this view it follows;that the delivery bonds, if unobjectionable-in themselves; (arid no. defects, are pointed out,) furnish a sufficient Warrant for the-executions: which issued upon them respectively, and that'-the-1 judgment of the Circuit Court is erroneous.

The most, regular, (if not the-only,} mode of obtaining-the-' revision,'of. an order of a Justice of the Peace, quashing1 or re-fusing to quash an execution, is by a certiorari. In such a proceeding the Judge or Court awarding the writ,may make such an order in regard to the bond to be executed, as would afford to the opposite party an ample security for his debt and cost. An appeal as provided by the statute would not perhaps lie, as this remedy contemplates a judgment by the Justice upon suit brought in the usual form.

And the extraordinary remedies by mandamus, &c. could not be prosecuted if a certiorari be allowable; at best they are expensive, and under some circumstances could not reach the justice of the case. . We have only to add that the judgment of the Circuit Court is reversed and the cause remanded.