Munro v. Baker

Headnote

Cause must be shown for a certiorari, in all cases where it is to review the proceedings of an inferior jurisdiction for error; except where the writ is sued out by the people.

A writ of certiorari had issued in this cause, in behalf of Munro, to remove into this court the assessment list of highway work made by the commissioners of highways of the town of Mamaroneck, in the county of Westchester, with their proceedings, and the determination of the commissioners in affixing the names of persons mentioned in the list; and the number of days which they determined each person should work for the year ; among whom they named Munró. The certiorari recited his complaint, that manifest error had intervened in the list and proceedings of the commissioners ; and the writ was allowed by the recorder of New- York, without any cause shewn by affidavit, or otherwise.

now moved to set aside the writ as irregular. He insisted that, at common law, it could be allowed only in open court ; (2 T. R. 89 ;) and the statute, (1 R. L, 140,) does not extend to the case,

At any rate, cause should have been shewn by affidavit; , , , , for there are certain cases m which the court, Irons a regard to public convenience, will refuse to allow a certio-rari. ( 2 Caines’ Rep. 181 , 2. 20 John. 84 . 2 T. R. 234.)

said the writ issues, of course, Unless restrained by the legislature. This is proved by our various statutes on the subject. And see also, Corn. Dig. Certiorari, (B.) Pro rege, the writ issues, of course, even where it is forbidden by the general words of a statute.