Majority
p. 640Mott vs. The Commissioners of Highways of Rush. Albany, March, 1839.
Headnote
A common law certiorari, when served should be accompanied with a certified copy of the order of allowance, or a certificate of the clerk that the writ was duly allowed.Motion to set aside a common law writ of certiorari, to remove proceedings had before the commissioners of highways relating to an encroachment, on the ground that the writ did not appear to have been allowed by the court. The papers in answer show that the writ was ordered by the court on an ex parte application, but notice of that fact was not given to the commissioners.
A. Taber, for the motion.
S. Stevens, contra.
p. 641
By the Court,
A copy of the order of the court allowing the writ should have been served with it; or at the least, there should have been an endorsement on the writ that it was allowed by the court. Writs of this description do not, like many others, issue as a matter of course, and the officer to whom they are directed has a right to know that they have been regularly sued out. But this objection may be cured. by an amendment, and on that ground—
Motion denied.