Haines v. Judges of Westchester

20 Wend. 625

Opinion

By the Court, Cowen, J.

The motion must be granted with costs. The return cannot be contradicted by an assignment of errors. It must be taken as conclusive, and acted upon as true. If false, you must go to your action. Vide per Platt, J. in Rawson v. Adams, 17 Johns. R. 131. —-— v. Cowper, 6 Mod. 90.

It is supposed that an assignment of a want of jurisdiction constitutes an exception to the rule. That is certainly not so, where the officers return that they have jurisdiction; nor am I aware that an issue has ever in any case been raised upon jurisdiction by an assignment of errors. A want of jurisdiction appearing on the return, the proceedings will be reversed on motion, without any assignment of errors, which is not applicable to a common law certiorari. See 1 Cowen, 28, n. If there be in fact a want of jurisdiction, an action lies not only for a false return shewing it, but for any injurious proceeding in consequence of the adjudication by the inferior tribunal.