Writs of certiorari are granted either by a Judge out of court, or upon affidavit and rule to shew cause in courl, and sometimes, though irrregularly, upon affidavit only in court. In the first instance the cause should be set down on the argument docket, and does not stand for trial until the court have expressly ordered a new trial to be had ; and whilst on the argument docket, it may be opposed by counter affidavits. Where granted upon affidavits and rule to show cause in court, it stands for trial without further argument. But when granted upon affidavits only, without a rule to shew cause, it is in the same situation with a certiorari granted by a judge out of court. The.ad verse party must have an opportunity to shew cause against it, and no new trial is to be had, till after he has had a day in court, and fails to appear, or appears to it without effect.
Note. Vide Dawsey v. Davis, ante 280. Reardon v. Guy, 2 Haywood. 245.