Overseers of the Poor v. OverSeers of the Poor

By the Court,

By the act to prevent abuses

in suing out writs of habeas corpus and certiorari, passed 24th February, 1801, 1 R. L. 140, the proceedings upon certiorari in a case like this were recognized and regulated. The party prosecuting such certiorari is required to enter into a recognizance, conditioned to prosecute the certiorari to effect without delay ; and if the order be confirmed, to pay such costs and charges as shall be awarded. This act has been repealed, 3 R. S. 131, Jfo. 44, and no such proceeding is recognized by the revised statutes. It is unnecessary to enter into any discussion of the operation of the revised statutes upon this case, because, by the statute under which the judgment for costs has been entered, no costs were recoverable, unless “ directed by the said court." 1 R. L. 141, § 4. The rule affirming the order of the sessions is silent as to costs. If the defendants in the certiorari had thought themselves entitled to costs, they should have made a special motion to the court for that pur*589pose. It was never matter of course to award upon the recod ■costs in such a casé, unless they were specially given in the rule for judgment.

Whether this court has power to award costs in this case is ■a question not necessarily arising; I shall therefore not discuss it. This motion must be granted.