Page:North Dakota Reports (vol. 2).pdf/215

 by an officer. The case of Harris v. Whitney overrules the case in 4 How. Pr., and holds that the return may be made by an ex-officer—a holding that would be generally followed today, even as to the common law writ, if such ex-officer still retained the record to be reviewed. It is true, however, that the return made by the ex-officer in Harris v. Whitney was of matter not of record. So far as any report shows, there was no transcript in the return; certainly there was nothing in the return to contradict the record made below. But how far short this ease falls of being an authority under our statute and in this state will become clear when we remember that the court upheld the subject-matter of that return upon the theory —and expressly so state—that it was competent for an ex-officer to make his return by affidavit; and that, if such ex-officer died before return made, the case could be heard on the affidavits of bystanders, and that each party could prepare such affidavits and serve on. opposite party; thus clearly showing that in the judgment of the court, under the statute then governing them, an issue of fact might be determined by the superior court on certiorari. The authorities hereafter cited will show that such a proceeding is unknown under the common law writ. Our statute seems conclusive upon the point that the writ cannot run to an ex-officer who has parted with the record. Section 6509, Comp. Laws, reads: “The writ may be directed to the inferior court, tribunal, board, or officer, or to any other person having the custody of the records or proceedings to be certified.” It is only when such “other person” has the custody of the record or proceedings that the writ can be directed to him. Again, § 5510 reads: “The writ of certiorari shall command the party to whom it is directed to certify fully to the court issuing the writ, at a specified time and place, and annex to the writ a transcript of the record and proceedings, describing or referring to them with convenient certainty, that the same may be reviewed by the court; and requiring the party in the meantime to desist from further proceedings in the matter to be reviewed.” What does the statute mean by a transcript? Webster defines it: ‘That which has been transcribed; a writing or composition consisting of the same words as the original; a