Mathias v. Mason

Campbell, C. J. In those two cases plaintiff in certiorari complains of certain irregularities which, if well alleged, and if so declared, he claims would avoid the assessments charged against him. The return takes some exceptions to his standing in court on the general merits, but shows further that he has paid the assessments under protest, and sued to recover back the money. As a certiorari is not a matter of right in these cases, it has generally been refused if other remedies are available, unless under peculiar circumstances. Here the plaintiff has elected another remedy, under which he can obtain full redress if the assessments are illegal, and if he has not paid them voluntarily. There would be no propriety in allowing [525] bim a double remedy, and he should be confined to the common-law action he has chosen. The writs must be dismissed, as improvidently granted. The other Justices concurred.