At this term, the following opinions were delivered.
Hornblower, C. J.
I. It is objected that the state has been improperly made a party to this suit.
The name of the state cannot, with legal propriety, be used upon every occasion, and therefore it ought not to be introduced upon the record, as a party, at the mere pleasure of every person who may think proper to use it. There ought to be, and one would suppose our books would furnish, some known and settled rule on the subject; yet such has been the diversity of practice in relation to this matter, that the reports afford no guide to the profession, but are rather calculated to distract and mislead the practitioner.
Perhaps, from the very nature of the writ of certiorari and the ever new and varying occasions for its use, no very definite and precise rules can be prescribed in relation to the parties in whose names as plaintiffs, or against whom as defendants, it should be issued; yet by a little attention to general principles, and legal analogies, much uncertainty and litigation may be avoided in this matter.
In The State v. Kirby, 2 South. 835, the Chief Justice (Kirkpatrick) said, “ the state can be made plaintiff only when the pubhc interest, the public peace, or the public order and econo[424]*424my are concerned.” But it is easier to lay down a general proposition, than to carry it out in practice, and apply it to particular cases. For instance, it has been argued that the state is always interested to see that the laws are obeyed, and properly executed; and therefore if corporations, commissioners, or other persons, acting under a particular statute, or exercising a special authority, mistake their duty, or act unlawfully, the state, watchful over the rights of individuals, and bound to protect them, steps in to the aid of the citizen, and tenders the use of its name in the prosecution, or defence, of those rights. But the same course of argument would lend the name of the state to every individual, in every action, he might think proper to bring against any public officer, or person acting under color, or authority, of law. The state has an interest, in a political sense, in every thing done within its jurisdiction. Public peace, security, order and economy, are more or less involved in every dispute and lawsuit that happens. Why not, then, lend the name of the state to every man who seeks to enforce a contract with, or to recover damages from, his neighbor for an injury done to his person or property ? But, I apprehend, the state is never properly plaintiff in certiorari, where the object of the writ is to relieve individuals in matters affecting their private rights; unless the proceeding complained of has been instituted and carried on, by the state, in its corporate and political character, and Tor political or municipal purposes—in other words, the name of the state cannot be used, as plaintiff in certiorari; except in those cases in which the individual, for whose benefit, or relief, it is sued out, cannot, upon legal principles, be himself the plaintiff; or where the state or the whole community have some rights, or interests, in the subject matter; not speculative or political, but direct and positive rights and interests, which are to be affected one way or the other. This will be found to embrace an extensive class of cases, relating to the public peace, the public revenue, the public defence, common and public highways, and many other matters of general interest and concern. In short, wherever the authority, or.the interest, of the state, in the prosecution of any of the great purposes of government, comes into conflict with individual rights, and the state, either in its corporate name, or by its appropri[425]*425ate a gents, in the actor, in carrying into execution those purposes ; then the name of the state may be properly used by an individual complaining of, and seeking to be relieved against its proceedings. I11 such cases, the state yields a tacit consent to be made plaintiff in certiorari where that is the proper remedy, for the purpose of affording the citizen an opportunity of being heard in this court, and having the error corrected, if any has been committed.
The case of The State v. Kirby, 2 South. 835, is at once an authority for, and an illustration of, the rule I have attempted to prescribe. The Chief Justice, in that case, says—“the certio7-ari is to be entitled at the S7iit of the state where its object is to bring into review, proceedings which arise upon municipal regulations, made for the public benefit, the public convenience, or the public safety. I11 the execution of these regulations, the state is always the actor, carrying them into effect, either Í71 its ordi7iary courts of justice, or by special commissioners, or agents, appointed for that purpose, &c.” In the same case it was objected that Kirby, the justice, ought not to have bee7i styled defendant, but that the writ ought to have been entitled as between the state, plaintiff, and the person charged with the fine and seeking relief, defendant; and though the chief justice considered it so much a matter of form as not to be fatal, yet he and Mr. Justice Southard concurred in opinion that the justice was improperly made defendant—that it being a case in which the state was properly plaintiff, the writ ought to have been e7ititled against the Í7idividuals who were seeking to avoid the fiues—they, having been proceeded against by the state, as delinquents, could not tiirn round and use the name of the state, in a suit against the justice, or any body else, to reverse those proceedÍ7igs. So, I apprehend, in this case, the certiorari ought to be between the same persons who were the parties in interest, and in action, below. If the state, in its corporate and political character, had any thing to do in the proceedings complained of, it was a matter between the state on the one side, and the landholders on the other. They cannot change the nature of the controversy, nor the parties to the proceeding,' by bringing a certiorari; they cannot involve the state in a law suit with the Morris Canal and Banking Company, to redress an injury [426]*426done by them by the latter. The state has provided legal tribunals, and proper forms of action, in which its citizens may protect their rights, or redress their wrongs: but it will not consent ■ to become the gladiator, or legal champion, of any individual.
I do not mean to say that in every case in which the state is properly plaintiff in certiorari, the person for whose benefit the writ is issued, must be styled defendant; nor do I understand that such was the meaning of the court in The State v. Kirby ; neither do I suppose, as Chief Justice Ewing, from what he said in The State v. Hansford, 6 Halst. 75, seems to have thought, that the court, in the former ease, did not intend to establish a general rule, but only to decide that, in that particular case, the persons seeking to avoid the fines ought to have been made •defendants in certiorari. On the contrary, it appears to me that the court, in The State v. Kirby, intended to lay it down, as a general rule, that whenever the party seeking relief by the writ was the defendant, or person acted upon in the proceeding below, and the state was the plaintiff, prosecutor, or actor, in the matter, by its appropriate agents, seeking to enforce some ■penalty, or duty, against the individual; then the certiorari, whether issued at the instance of the state, or the citizen, is always to be entitled as between the state, plaintiff, and the party complaining, defendant. That this is the true rule, I think there can be no doubt: it is in perfect analogy with the practice in other cases. In all indictments and criminal proceedings, the state is the original prosecuting party; yet in certioraris, to remove such proceedings, the state is plaintiff, and the defendant below invariably the defendant in certiorari. So, too, in England, certioraris in settlement cases, and other matters touching the poor, are entitled the King v. the party suing out the writ, and seeking to avoid or defeat the order or proceeding below; 1 Burr. R. 52. This rule may not have been uniformly followed in England; but in proceedings by, or in behalf of, the crown, affecting individuals by name, it will generally be found to have prevailed; as in Rex v. Manning, 1 Burr. R. 377, an act of parliament had authorized the surveyor of the highways to dig gravél, &c. upon lands in the occupation of Manning, upon an order of the sessions for that purpose. The certiorari to remove such an order was entitled as above—Manning, the com[427]*427plaining party, being styled defendant. The case of Rex v. King & al. 2 D. & E. 234, cited by Chief Justice Ewing, in The State v. Hanford, 6 Halst. 75, as conflicting with this rule, will not, perhaps, upon examination, be found inconsistent with it. That case rather belongs to a numerous and ever occurring class of cases in which, though the state must be plaintiff in certiorari, no particular individual can, with strict legal propriety, be styled, or treated, as defendant on the record. I allude to such proceedings, on the part of the state, or under its authority, as affect the community in general, or the inhabitants of a particular county, or district of country—such as the Middlesex court house election case, Coxe, 240; the case of Anderson, sheriff elect of Hunterdon county, Coxe, 318; the by-law of the corporation of New-Brunswick, Ooxe, 393 ; the boundary question between counties, 1 Green, R. 98 ; and to these may be added orders and proceedings of boards of assessors, and boards of freeholders, relating to taxes, county bridges, &c. and other matters of a public and general nature. The court did not, in the case of The State v. Kirby, and I do not, in this case, intend, to carry the rule so far as to embrace the class of cases just referred to. I11 them the rules ought to be entered, and all the proceedings entitled as between the state on the one side, and the corporation, commissioners, officers, or other persons, whose acts are complained of, on the other.
But the question, in this case, is, whether the name of the state has been properly made use of as plaintiff in certiorari ? I am of opinion it has not. If the landholders have been injured at all, they have been injured by the Morris Canal and Banking Company. It is a matter of private and individual right, in which the state has no other interest but what it has in every other matter between citizen and citizen. The company are bound to pay for the lands they take, and the damage they do, in constructing the canal. The law has constituted a tribunal to decide between the company and the landholders: the individuals composing that tribunal were to be designated upon the application of, and certain preliminary steps to be taken by, the company (see charter, 6 section, in Har. com. 95.) The appointments have been made, and the persons appointed, have acted in the premises. Some of the landholders are dissatis[428]*428fied, as well with the doings of the appraisers, as the manner of their appointment. What does all this present but a matter of private and individual interest and dispute? The company are responsible, as well for the regularity of the appointment of the appraisers, as for the legality of their proceedings; and I see nothing' to prevent a direct appeal to this court, by certiorari, at the suit of the complaining party, against the Morris Canal and Banking Company, without' using the name, or invoking the aid, of the state in any other way than by the command of its writ. My opinion, therefore, is, that the name of the state has been unnecessarily and improperly employed in this case. If, however, this was the only objection, I would not quash the proceedings, but direct the entries in our minutes, and the endorsement on the writ, to be amended, The State v. Kirby, 2 South. 835 ; The State v. Hanford, 6 Halst. 76.
But II. Exception is taken to the direction of the writ, first because the persons to whom it is addressed are called commissioners instead of appraisers; and secondly, that it ought to have beén directed to the clerics of the counties in which the lands lie, and not to the appraisers.
The first branch of this objection is not well founded. If the writ has, in fact, been directed to, and returned by, the proper persons, it is not to be defeated upon a ground so purely technical. It is true the statute speaks of the persons who are to make the appraisement as appraisers; Har. Com. 95, sec. 6; but I do not think it was the intention of the legislature to give them a legal cognomen, by which only they should be known ■in law. The term “ commissioners ” is a legal and appropriate designation of such persons as have a commission, letters patent, or other lawful warrant, to examine any matters, or to ..xecute any public office, &c. 1 Jac. Law Dic. 507. But if a certiorari is directed to the right person, though by a wrong name, he alone can object, and if, in fact, he makes a proper return to the writ, a third person cannot complain of the misnomer ; Daniel v. Philips, 4 T. R. 499.
But the second branch of this exception, viz. that the writ, or writs, ought to have been directed to the clerks of the different counties in which the lands lie, is of graver import.
When this court is called upon to exercise its superintending [429]*429power over inferior and summary jurisdictions, it not unfrequently becomes a question of some difficulty to know to whom its writ should be directed. In 4 Vin. Abr. 339, cert. B. 3 pl. 5, it is said, “ a certiorari to remove a record ought not to be made but to an officer known to have the custody of the record, and upon a surmise that he hath such a record in his hand.” The question, then, is, who, in legal contemplation, has the custody of the record, or proceedings, required to be certified in this case ? To answer this question, we must have recourse to the statute under which the proceedings have been conducted; and there we find it enacted as follows, viz. “ the appraisers, or a majority of them, shall make regular entries of their determination and appraisal, in a book, or books, to be by them kept for that purpose; and shall certify the same under’ their hands and seals, acknowledging the same, &c. and shall cause such book, or books, to be filed in the office of the clerk of the county in which the lands may be situated ; there to remain a public record.” Har. Com. sec. 6, 96.
Some doubt was suggested, on the argument, whether the appraisers had actually filed their proceedings in the clerk’s office when the certiorari in this case was sued out; and it was argued, that as the statute fixed no time within which the appraisers should file their proceedings, the prosecutors of this writ were not bound to know that they were actually filed in the proper offices. The answer, however, is obvious: they sued out the writ at their peril. If they directed it to persons who had not the record, it was their own mistake: not only so, for if the.y sued out the writ before the commissioners had actually filed their proceedings in the proper offices, they were premature. Until that was done, the whole matter was in fieri; it was incomplete, and had no legal efficiency. It would be like the case of freeholders, appointed to review the return of a road, who, though they had made out and signed their certificate, had not yet returned it to the court. In such a case, we have refused a certiorari; 3 Halst. R. 139. The King v. Eaton 2 T. R. 285, was cited to show that a certiorari may be directed either to the person who made the document, or to him who has the custody of it. But the case is to the contrary. The justice certified a copy of the conviction, and gave as a reason for doing so, that [430]*430he had, previously to the coming of the writ, sent the record itself, as it was his duty to do, to the sessions. The court refused to quash the return, (which was moved for by the plaintiff in certiorari himself) on the ground that the writ had improperly issued. Cases were cited in our own court, to show that writs of certiorari have been directed to persons not having the legal custody of the document required—such, for instance, as surveyors of the highways, in road cases; and justices of the peace in the case of military warrants. But this only proves, that the same 'irregularity, and want of legal accuracy, has prevailed in the direction of the writ, as has been shown to exist in relation to the parties ; but it does not prove that the writ may lawfully be directed to any body.
Upon the supposition that the appraisers had terminated their duties, and filed their assessments in the proper offices, before the writ was issued, (and if they had not done so, the writ was premature) the writ, in my opinion, was fatally misdirected. The appraisers had become functi offi.cio. Their proceedings, by the very terms of the charter, had become matter of “public record ”: they had ceased to have any control over them, and could not• obey the command of our writ. They could neither send us the record itself, nor officially certify to us even a copy of it. They could, indeed, as, in fact, they have done, go to the proper offices, and get copies duly certified by the respective clerks, and annex them to our writ; and the crier of the court might have done the same thing if we had directed our writ to him; but neither of them could officially respond to the writ. This is not a technical objection, as was said, but a grave and substantial one; for if a certiorari is improperly directed, nothing can be removed by it; 1 Bac. Arb. tit. cert. 572, let. I.
The III. objéction is that the return is insufficient—it appearing, upon the face of it, that the papers sent up are only copies.
If this objection is fatal, it only shows that the writ was misdirected. The appraisers had not the custody of the original documents, and could not, therefore, either in fact, or in legal contemplation, send them up. It is true, with some qualification, as was insisted at the bar, and said by the chief justice (Kirkpatrick) in The State v. Nichols, 2 South. 542, that the record is never sent with the writ, but only the tenor. But when [431]*431copies are sent by the proper officer, having the legal custody of the record, they are received and taken for the record; they are not received as copies, unless the tenor only is required by the writ; 1 Bac. abr. tit. Cert. 572, let. H. and per Holt. Ch. Just, in Rex v. North, 2 Salk. 565, pl. 2. “ It is an error in
the clerks in London, that upon a certiorari, they return only a transcript, as if the record remained below; for in C. B. though they do not return the very individual record, yet the transcript is returned, as if it were the record; and so it is in judgment of law.” 4 Vin. abr. tit. Cert. 340, 341.
But this writ calls for the records; and if copies are sent, we cannot act upon them as such ; we must intend them to be, and receive them as the records, or not receive them at. all; for on this certiorari, we are to hold plea of the record. But we can make no such legal intendment in this case, for they are sent here merely as copies, and that too, by persons who could not send the originals. This is not apices litigandi, a mere legal refinement; it is a doctrine founded on this plain distinction, that when the object of the certiorari is not to affect the record itself, or where the court awarding the writ, cannot hold plea of the record, there the tenor only is to be certified. But where the certiorari is in the nature of a writ of error, as it is in this case, and the court is to hold plea of the record, the record itself is to be sent up; to the end, that the judgment of the court may conclude the record; 4 Vin. abr. tit. Cert. 340 let. C; 1 Bac abr. tit. Cert. 572, let. H. In my opinion therefore, the return to this certiorari “ is naught,” and ought to be quashed or taken off the files. And see Palmer & al v. Forsyth & al, 4 Barn & Cress. 401; and in 10 Eng. C. L. R. 368.
If the controversy was to terminate with this motion, it would be unnecessary to pursue the subject any further; but as such is not likely to be the case, I shall proceed to consider the fourth exception : viz:—That the writ and return is multifarious .—First, because the prosecutors have no common or joint interests, but only several, independent, and distinct rights; and secondly, because the certiorari calls for five several and distinct records, though the prosecutors are neither parties or privies to all, or to any two or more of them.
[432]*432It was asked by the counsel for the defendants, how this cause is to be conducted ? Are the prosecutors to join in one common assignment of errors, or is each one to assign for himself the error he complains of, as affecting his own rights ? If it becomes necessary for the prosecutors to enter rules, or take odepósitions, to prove matters not common to them all, but applicable only to their individual cases, in what manner is it to be done ? Are all to be actors for each; or, having got the different records here by a joint process, are they now to sever, and each proceed for himself ? These, and other questions, must be met and answered. But it is no answer to say, as was done in argument, that separate certioraris would be so expensive as to amount to a denial of justice; that some of the prosecutors would be unable to bear the expense of an individual suit. If such be the case, it is no denial of justice, in the proper and legal sense of that expression. Nor, must we amalgamate separate and individual claims, because the law abhors a multiplicity of suits. Combinations, for the purposes of litigation, are equally odious. The same argument would justify a joint action in every other ease, where the plaintiffs could plead poverty, provided they had sustained similar injuries and were entitled to similar remedies. Nor is it any answer to say, that the prosecutors have one common right, if by that is meant only, that each has, in common with the others, a right to complain ; and if, by one common right is meant a joint right or joint cause of action, it is not true. What has A to do with B’s land, or with the damages assessed to him ? But, it is said, the appraisers adopted certain erroneous principles, which they applied to the cases of all. Be it so ; that cannot give them a. joint remedy. A was not injured by the application of that erroneous principle to the cases of B and C. ' If injured at all, it was by the application of that principle to his own case. Suppose several causes pending in this court, of the same character, between different parties. We mistake the law, and by the application of an erroneous principle to all the cases, we give judgment against the several defendants; will it be pretended that therefore the defendants may have a joint writ of error? Certainly not? Again, it is said, the landholders are all parties to the record. This, however, is not so, unless the five dif[433]*433ferent records remaining in the several counties constitute in fact, but one entire record. But if it were so, it would not alter the ease; the landholders would, indeed, be all parties to the record, but not “ a party; ” each would be a party in his own right. The rights of the landholders^ are not joint and several. They must be either the one or the other. If joint, then all of them, without exception, ought to have united in this writ, unless permitted by a rule of this court, to sever; and if several, then they cannot, upon any principles, unite as plaintiffs or prosecutors.
The cases cited by the plaintiff’s counsel, Rex v. Harmer & al, Andr. 344, & Rex v. Inhabitants, &c., 2 Salk. 452, only shew, that one certiorari will remove several orders or indictments against the same individual; 4 Vin.abr.tit.Cert. 337, let.B.2.
Upon the best consideration, I have been able to give this subject, the result in my mind is, that where the injured or complaining party cannot, himself, upon legal principles, be the plaintiff in certiorari; (as he cannot be where the state is either actually, or in legal contemplation, a party to the proceedings ;) there the writ must be issued at the suit of the state, upon the application of the individuals seeking protection or relief ; who are then the relators or prosecutors, or are defendants in certiorari, according to the nature of the case; that in all such cases, the writ may be issued at the instance of any one or more of any number of persons who may be affected by the record or proceeding below, however several or distinct their respective rights or interests in the matter may be. The court may then reverse or set aside the order, judgment or proceeding complained of, as to any one or more of the prosecutors, or confirm the same as the law of the case may require. Accordingly we find it laid down, that a writ for the removal of all indictments against A, may remove an indictment against him and twenty others, so far as concerns him; 1 Bac. abr. tit. Cert. 573, let. I. Again, if there be but one indictment, and the offences several, as if A, B, C and D, be indicted by one bill, for severally keeping disorderly houses: A and B may have a certiorari, and it will remove the indictment as to them : and the record is then in B. R. virtually and truly, as to A and [434]*434B; but as to C and D, the record remains below ; 4 Vin. abr. tit. Cert. 337 let. B.
The State v. Wilson, assessor, &c. 1 Penn. R. 300, which was a certiorari to remove the assessment of taxes, The State v. Kirby, 2 South. 835, and. another case of the same name in 1 Halst. 143, by which warrants for military fines against a number of delinquents, were reviewed, are all in perfect accordance with these principles; for in each of those cases, the state was the actor, and necessarily the plaintiff in certiorari. But if the parties seeking relief, can have a certiorari in their own names, as plaintiffs on the record, they must prosecute it according to their rights. If more than one person is concerned, and they are jointly bound by the order or judgment below, they must all unite and prosecute a joint certiorari, (unless by summons and'severance, or rule of court in lieu thereof;) and then this court must either affirm or reverse the whole matter. On the other hand, if the order or proceeding below, though it constitutes but ,one entire record, affects them severally and not jointly, they must then seek ■ their remedies, by separate writs of certiorari. - They cannot join in one writ, and then have divers trials and divers judgments in that one suit. The reason for this difference, between those cases in which the state must be plaintiff, and those in which the injured individuals may themselves be plaintiffs in certiorari, is this: viz—If several persons are jointly, or jointly and severally bound by one record, and all will not, though all might unite as plaintiffs in error, there may be summons and severance. But if it is a matter in which the state is a party, and must therefore be plaintiff on record, there can be no summons and severance among defendants; and therefore, if the state will not lend its name to such of the defendants as wish to appeal from the order or proceeding below, all would be remediless.
, It was argued by the counsel for the plaintiff, that if the state creates a corporation, and gives it a right to enter upon and take the lands of individuals, they have a right to use the name of the state, for their protection against any irregular or unlawful conduct on the part of the corporation. It is true, if a corporation abuses, or misuses its franchise, the state is the proper party to call them to account. But it by no means fol[435]*435lows, that because the state, by its legislative act, has created the corporation, therefore, in every controversy between it and individuals, the state must be a party. It is no answer to say the proceeding complained of took place under the charter. A corporation can do no act but in virtue of its corporate authority ; and that argument, therefore, would involve the state in every transaction between the corporation and individuals. The law cannot be so. An examination of the cases in which the state here, or the crown in England, has been plaintiff in certiorari against corporations, whether municipal or private, will shew that the object of the certiorari was to call in question, either the right of the corporation to do, or the mann er of doing some act affecting the public interest.
The council for the plaintiffs by way of preliminary objection, insisted the defendants were out of time ; that they ought to have raised these questions on the rule to shew cause why this writ should not be allowed. I do not think so. The only inquiries, on the argument of that rule, were, whether it was a proper case for a certiorari, and whether probable or sufficient ground was laid for an allocatur. The form of the writ was not discussed or settled’ on that rule.
Upon the whole, for the reasons I have assigned, I am of opinion, the certiorari in this case, and the return thereto, must be quashed and set aside, with costs.
Ford, J. concurred.
Ryerson, J.
The counsel for the defendants moved to quash this writ, first, because the name of the state was improperly used, the state having no interest, or concern, in the questions involved. It is said to be merely a controversy between private persons, in which character the defendants are to he regarded.
But I am not satisfied that this objection ought to prevail. It should be borne in mind that the proceedings to he reviewed, by this writ, constitute one link in a chain by which private property is taken for public use, without the consent of the owner, to constitute and construct a public highway; and I can see no essential difference between this case and the laying out of a common or ordinary highway, or a turnpike road,, which are properly reviewed by a writ, in the name of the state. The examples are too numerous, and well known, to require to be par[436]*436ticularly cited. The state, alone, has the prerogative of taking and appropriating private property without the consent of the owner. It is the exercise of a high attribute of sovereignty, and whether taken by the intervention of ordinary and subordinate public officers, as surveyors of the highway, or by more elevated special commissioners, as in the present case, is all the same. It is still the act of the public, by public agents, known and accredited as such, and for that purpose. Nor can it make any difference whether in this business' of constructing highways, of which the canal is one, the state acts directly by its proper public officers, or mediately through a private individual, or company of individuals, with a delegated power to exercise this prerogative, and to have the expense reimbursed by exercising another public prerogative of taxation, in the shape of tolls. The public is,- or is supposed to be, the party to be benefited by the establishment of the canal. It is only on this basis of public interest, that the grant of sxich extraordinary powers can be supported, or is even asked for, however they may sometimes be exercised in derogation thereof. I understood it to be conceded, on the argument of this cause, that the position now contended for would be correct if if were the survey of the route of the canal, and not'a mere appraisement of the land, or assessment of damages which were sought to be set aside. But the distinction is more imaginary than real.. The company is not possessed of the land by the survey. The appraisement, and payment, or fender, of the money, must be superadded to give them the title, or lawful possession. Without this, they are liable to be turned out by the owner, the canal demolished, so far as it passes over his soil, and this great public work, which has occupied so much public time and legislation, under an idea of great public benefit to be received from it, entirely interrupted ; 6th sec. of the act of incorporation—near its close, Har. Com. 96. The public interest is therefore most manifestly involved in this controversy, and the case is expressly within the opinion of Chief Justice Kirkpatrick, in The State v. Kirby— relied on by the defendant’s counsel. Besides, it should be observed that the state has, in this case, granted to this company the power to exercise some of the most important and interesting public prerogatives; and it is incumbent on the state, as I [437]*437conceive, to interpose, as often as necessary, for the protection of its citizens, in order to see that those prerogatives are exercised in a lawful and proper manner. I hardly deem it necessary to notice the case of Kingsland v. Gould & al. cited on the argument by the defendant’s counsel. The slightest inspection will show that the proceedings removed, related only to the improvement of private property. It was further said, on the argument, that the name of the state was calculated to give an improper weight to this proceeding. If there be any thing in this argument not sufficiently answered by the observation just made, it may be further remarked that the citizen is entitled to the protection of the state against an artificial body, raised up under public authority, and clothed with prerogatives and capital, too powerful to be resisted by an ordinary individual.
It was said, secondly, that this writ was erroneous in the mame of office given to the persons to whom it was addressed; that the appellation of commissioners was improperly used instead of appraisers. This objection presents a question of no great moment, so long as the writ fully designates the persons, .and points out the character, or capacity, in which they are addressed ; and if in so doing, an improper term has been used, the due administi ation of justice requires that we should direct a letter to be substituted, and not defeat the whole proceeding for such a mistake. The error, if any, may be amended. But I believe “ commissioners ” to be correct. It is nomen generate, designating an office of a public or private nature, permanent or temporary ; and although the term be not used in constituting the office, they may be nevertheless commissioners, if their duties be confined to a particular case, or class of cases. Thus we may have commissioners to make partition of lands, street commissioners, or commissioners of bankruptcy; and in this case we have commissioners to make appraisements, although the term be not used ; and the w*ord “ appraisers ” is used in the act, not as any official, or technical appellation, but rather as descriptive of the duties which they were commissioned to perform.
A third objection taken to this writ is, that a number of persons, having no common interest, are joined together in its pros•eeution; and the case of The State v. Kirby, is relied on by ei[438]*438ther party in support of, and in answer to, this objection. Upon the authority of that case, the writ ought not now to be quashed. It was.also apparent, on the argument of this cause, that the defendants carefully sought, and had an opportunity to resist the allowance.of this writ. When the motion therefor was. actually made before the court, they declined to urge any, objection to the right, or form, of the writ. Under these circumstances, I am not inclined to hear them now, on points not of vital importance. According to the view which I have taken of this ease, the writ was properly issued in the name of the state. The whole proceeding, or record, unless for another objection not yet noticed, would be thereby removed. The record, and the whole record, being before the court, any number of persons may very properly come in, and assign errors on his particular case. In this I am supported by the case of The State v. Kirby, before referred to, and I can see nothing in the practice to condemn. It strikes me as a very useless and idle form,, to compel every prosecutor (even to a great number) who may lawfully use the name of the state, to have his wrongs redressed, successively to sue forth a writ of certiorari, in order to bring here a record, which, in point of fact, and legal contemplation, is already fully certified to the court. When the record is brought, or is to be brought here, by writ, in the name of the state, this court may very properly, as I believe, exercise a discretion in the number and connection of those whom it will permit to join in procuring it, and proceeding on it, when here, and also in the manner of proceeding, whether jointly or severally. But in any. .view of the case, I should be unwilling, for this cause, wholly to quash the writ. If the objection were well taken, it would be better to amend by striking off the names of prosecutors, leaving it to be further proceeded on by one alone, or such number as had a joint interest in any one or more of the particular appraisements.
For any and all of the reasons above noticed, I should be unwilling to quash this writ. But it has been further urged, that the writ has been improperly sent to the commissioners, or appraisers, who had not the record, and subordinate thereto, that their return is nugatory. Upon this objection, I feel constrain[439]*439ed to concur in the opinion of the court, to which it is useless for me to attempt to add.
Having come to this conclusion, it is unnecessary to pursue the subject further. I would merely notice one other point adverted to on the argument of this case. That if the state be properly made plaintiff, the prosecutors should be named defendants, State v. Kirby. I cannot, at present, think this universally true, and would refer to the extensive class of cases of eertioraris against turnpike companies. Is there not a distinction where the state acts solely for the common good, by its proper and peculiar agents, or where it acts by its grantees of power coupled with an interest, who have done, or caused to be done, the act complained of, and are therefore rightly called on to defend those acts ? I have not attempted to form any definite opinion on the point.
Cited in Browning v. Cooper, 3 Harr. 197; Morrel v. Fearing, Spencer, 671; State v. Justice, 4 Zab. 414; State v. Howell, 4 Zab. 520 ; Camden v. Mulford, 2 Dutch. 55; State v. Browning, 4 Dutch. 561; State v. Brown, 2 Vr. 357.