¶1delivered the opinion of the court.
¶2This is an assize of nuisance commenced in the Court of Common Pleas, and removed to this court by the defendant by certiorari. The plaintiff has moved to quash the certiorari as having issued irregularly.
¶3The learned counsel for the plaintiff has thought fit to elect a remedy which has long been antiquated in England, and which, if ever pursued in this state, has certainly not been used more than once or twice; indeed no precedent has been shewn of its having ever been carried completely through. Lord Mansfield declared, that of 'seisin and disseisin very little was known except the name. I will not say quite so much of the assize of nuisance, but it is certainly a subject in which we are much in the dark. It is however our duty to administer justice to suitors, in whatever legal form they may think proper to present their claims. It cannot be denied that the remedy by assize exists, because it is expressly declared in the act of assembly 22d May 1722, that the Judges of the Supreme Court shall have jurisdiction as justices of assize. The counsel for the plaintiff founds his motion on the supposition, that if this court retain the suit, they cannot go on to try it, because the jury who viewed the nuisance while the cause was depending in the Common Pleas, have been discharged, and no other jury can decide it. It appears from the precedents which have been cited, that the recognitors of assize who had the view, and were originally returned by the sheriff, are those by whom the assize is to be taken; but it also appears that in many instances they have been discharged, and afterwards resummoned. It was said by the plaintiff’s counsel that such resummons was always by the same court in which the suit was commenced. It probably is so in England, because there it is not the custom to remove a cause from the Common Pleas to the King’s Bench for trial; but here it is different. What was the effect of the certiorari in this case? It prevented the Court of Common *195Pleas from any further proceeding, and brought up the record. On its entrance into this court, every thing stood exactly as it was in the Common Pleas, at the time of removal. If then the law be, as is supposed by the plaintiff, that the same jury who viewed the nuisance must try the assize, the court are of opinion that they-have power to resummon them.
¶4This being the only objection raised by the counsel for the plaintiff, the motion to quash the writ must be rejécted.
¶5'Mr. Lewis took nothing by his motion.