Mayor & Common Council of Hudson v. Andrews

28 N.J.L. 579

• Court: Supreme Court of New Jersey
• Decided: March 15, 1860
• Status: Published

Opinion

The opinion of the court was delivered by the

Chancellor.

The result of this case is controlled by the decision just pronounced. The writ of error will not lie.

To which it may be added that, on its face, the order decides nothing. It simply directs public officers to perform a duty enjoined by statute.

The entry of the rule is clearly irregular in form and substance. It purports to be peremptory; it clearly authorizes only an alternative mandmwus. It directs, by name, an officer to be sworn in, who may not and does not appear to be in office. These irregularities may and should be corrected in the court below.

In this.case there was no motion to quash. The party was suffered to incur the expense of preparing his case for argument. Still, in the absence of authority, the court cannot reverse. In conformity to the practice adopted in Garr v. Hill, the writ must be dismissed, but without costs.

In affirmative—The Chancellor, Judges Ogden, Ybedenburgh, Whelpley, Combs, Swain, and "Wood.

Negative —FT one.