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Saratoga and Washington Rail Road Company agt. McCoy and others.

SUPREME COURT.

In the matter of the SARATOGA AND WASHINGTON Rail Road Com

PANY, agt. McCoy, HODGMAN AND WILLIAMS, Trustees of School

District No. 1, in the town of Fort Edward, Washington co. Opposing affidavits may be read on motion for a common law certiorari. A certiorari will not lie to the trustees of a school district to review the pro

ceedings of the trustees, or of the district meeting where the remedy is given

by appeal. Whether a motion can be made to quash a certiorari after it is returnable, but

before it is actually returned. Quere. A writ of supersedeas may be granted before the return of the certiorari,

Washington Special Term, March 1851. At the special term of this court, in February last, a certiorari was allowed in open court, on the ex parte application of the plaintiffs, directed to the defendants, commanding them to certify the tax list, warrant and apportionment of tax in school district No. I, in Fort Edward, in April 1850, together with the assessment roll, resolutions of said district, records and proceedings upon which the same were founded with all things touching the same, and the mode and manner of making such apportionment, to our justices, &c. at their special term on the second Monday in March next, &c. The error complained of in the affidavit, was that the trustees had made their apportionment according to the town assessment of 1848, in which year the rail road company were taxed for 21 acres of land in said town in one item at $23,000. That their real estate consisted of the track of their road, about ten acres of which was without the bounds of the said district. The tax assessed by the trustees upon the plaintiffs was $218.50, which they had paid.

The defendants moved to quash or supersede the certiorari. They deny that the apportionment of the district tax in question was based upon the assessment roll of 1848, because in that year the rail road company were not taxed at all, but on the assessment roll of 1849; and they admit that they made a mistake in assessing the company upon the whole sum at which they were taxed

Saratoga and Washington Rail Road Company agt McCoy and others.

in the town, without deducting the value of their real estate in said town, out of the bounds of the said district. This error made the tax of the rail road $38.23 too much; on discovering which, and after it had been paid by the company, they obtained the advice of the superintendent of common schools to correct the said tax list according to the statute, and refunded the said money thus erroneously collected from the company. There are some other facts stated in the affidavit on which the certiorari was allowed, which are controverted in the moving papers, but they are not necessary to be stated.

Wait & PARRY, for the Motion.

W. L. F. WARREN, Contra. WILLARD, Justice.—The certiorari in this case was granted upon an ex parte application. Had notice of the motion been given, the defendants could have successfully opposed it on the affidavit upon which the present motion is founded. Opposing affidavits may be read in opposition to a motion for a common law certiorari (1 Hill, 195; 2 do. 398). The case of Commissioners of Highways of Warwick vs. The Judges of the Orange County Courts (9 Wend. 434), was probably misreported, so far as it contains any different doctrine.

The trustees of the district were authorized by law to correct the error in the tax list and to refund the money improperly collected on it (L. of 1843, p. 165, § 13). After such correction and refunding the money, the plaintiffs had no reason to complain of the assessment; and there no longer remains any occasion to review the proceedings on certiorari. All this had been done before the certiorari was allowed.

But there is still another reason for quashing the writ. It was held in Slocum vs. Odell (2 Wend. 287), that a certiorari will not lie to the trustees of a school district to review the proceedings of the trustees or of the district meeting, because those proceedings could be corrected on appeal, under the law of 1827, to the commissioners of common schools of the town in which the district is situated. That case is approved in 2 Hill, 27, and the general

Saratoga and Washington Rail Road Company agt. McCoy and others.

principle is affirmed that where a remedy is given by appeal a certiorari should not be granted. Under the Revised Statutes (1 vol. 487, § 169,) an appeal in this case was given to the aggrieved party from the decision of the school district or their trustees to the superintendent of common schools; which appeal by the 7th section of the Laws of 1833, p. 164, was required to be first presented to the county superintendent, whose decision might be reviewed on appeal to the superintendent of common schools. The rail road company, therefore, had an ample remedy without resorting to a certiorari.

It has been objected that the present motion can not be entertained because the certiorari has not been returned, although it is returnable. In the People vs. The Judges, &c. (4 Cowen, 73), the same objection was taken to a motion to quash an alternative mandamus; and although it was stated by the court that a motion to quash the writ will not in general lie till it is returned, the decision of the cause did not turn upon that point. But in Ferguson vs. Jones (12 Wend. 241), a motion was made to quash a certiorari not then returnable. It was held that although the motion was premature, the party might take a rule under the general clause of his notice, to supersede it, and it was superseded accordingly. In that case the motion was made at the November special term, and the writ was not returnable until the January term following. This case contains a strong implication that the motion may be made to quash, after the writ is returnable, though in fact it is not returned. Be that as it may it is directly in point that the writ may be superseded, under a notice like the present.

The same purpose will be accomplished by a writ of supersedeas, as by an order to quash. It is therefore ordered that a writ of supersedeas issue to the writ of certiorari in this case tested the 17th day of February 1851, and allowed in open court at the Washington special term on that day; and it is further ordered that the plaintiffs pay to the defendants ten dollars for the costs of this motion.

Park agt. Church and Atwell.

SUPREME COURT.

Park agt. CHURCH AND ATWELL. Where a confession of judgment commenced with the title of the cause, and

then proceeded thus, “judgment is hereby confessed in this cause for the sum of $1413,” &c.; the statement being signed and sworn to by the defendants, Held, that it was a sufficient authority under the Code (9 383, 1 sub.) to enter judgment. This part of the statute is directory merely. One year bars all relief for irregularity in entering judgment (2 R. S. 282,

§ 2). Where an execution contains all the requisites specified in 9 289 of the Code

(which prescribes the form), it is sufficient. Therefore, objections that it is not issued " in the name of the people,” nor“ tested in the name of the Chief Justice or any Judge," and is not, on its face made returnable within sixty days," are unavailable, where there is an endorsement on the back

directing the sheriff to return it in sixty days. Where the vendor of a store of goods took from the vendees a judgment to se

cure a part of the purchase money and entered into a written stipulation not to issue execution thereon in five years, "unless upon an actual examination of the books, accounts of sale, and business of the said parties of the second part (the defendants), in their store aforesaid, he shall have good reason to deem himself insecure," and about one year afterwards the plaintiff being informed that the defendants were about making an assigument, and learning from one of them that they had consulted counsel about it, and did not know but they should do so before going to New York, that they had got so deeply in debt, and insolvent, that they were not or should not be able to pay

their debts; that they owed," fc. And that on the same day the plaintiff with the sheriff, who had the execution, went to the store, found it closed, and the defendants with their counsel within it engaged in writing, and declaring that the assignment hal been made some three or four hours previous, but which in fact appeared not to have been made until after the levy by the sheriff on the execution, Held, that the plaintiff was excused from a literal compliance with the conditions of the stipulation, as to the examination of the books, fc, of the defendants. The substance of the condition was that the plaintiff should have good reason to believe himself insecure.

Oneida Special Term, April 1851. Motion to set aside an execution.

Ch. H. DOOLITTLE, for Defendants.
S. CRIPPEN, for Plaintiff.

GRIDLEY, Justice.—It appears from the papers used on this motion, that a judgment was confessed to the plaintiff on the 16th

Park agt. Church and Atwell.

day of March 1850, for the sum of fourteen hundred and thirteen dollars, for the purpose of securing a balance of that annount, due on the purchase of a store of goods bought by the defendants of him. On the 29th of March 1851, an execution was issued on the judgment and levied on the goods in the store. This motion is made to set aside the execution upon several grounds.

1. It is said that there was an irregularity in the confession of judgment. The particular irregularity relied on is that the confession does not contain any authority to enter judgment pursuant to the first subdivision of section 383 of the Code. The contes. sion of judgment commences with the title of the cause, and then proceeds thus; “judgment is hereby confessed in this cause for the sum of $1413” &c. It is difficult to state the authority in a more direct manner than is done here; especially when we remember that the defendants both swear to this statement, and that in every other respect the confession is admitted to conform to the statute. Again, this part of the statute is directory merely, and the defendants can not be heard to object to it, especially after the lapse of more than a year; one year bars all relief for irregularity (2 R. S. 282, § 2; see also Griffin ys. Mitchell, 2 Cow. Rep. 548).

2. There are several objections made to the form of the execution. It is said that the execution is to be deemed process of the court by section 286 of the Code; and that by the eighth section of title 1 ch. 3 part 3 of the Revised Statutes (2 R. S. 275, $8), it is provided that all writs and process shall be in the name of the people of the state. It is further urged that the process should be tested in the name of the chief justice or senior judge of the state (2 R. S. 198, 9 10), and that by section 290 of the Code, the execution should be returnable within sixty days after its receipt by the sheriff. The execution in this case is not in the name of the people, is not tested in the name of any judge, and is not on the face of the process made returnable within sixty days, but on the back is endorsed a direction to the sheriff to return the same in sixty days.

It is to be remarked that the execution contains all the requi

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