Low v. Rogers

This case was removed into this court by certiorari, and was founded upon an inquisition taken *322under the 20th section of the highway act, (Laws, vol. 1. p. 596.) by which the jury had found that the appellant had encroached upon the highway, and the inquisition has been now quashed by this court.

The inquisitio'n- below was not a judgment, or order, made for the benefit of another person, within the act relative to suing out writs of certiorari. (Laws, vol. 1. p. 192.) It seems to be a casus omissus in our statute book, as to costs. There is no provision giving costs, or damages, either one way or the other, when such a proceeding as that below is removed into this court by certiorari. The act regulating the suing out writs of certiorari is the only one making provision for costs in cases . analogous to this, and that is done by requiring the party suing out the writ, to enter into a recognisance to pay costs. There is a similar provision in several - British statutes relative to proceedings by certiorari.

Costs denied.