
    Commonwealth versus Josiah Hall et al.
    
    Where a writ of certiorari to the Court of Sessions had been granted upon the application of a turnpike corporation, because the court, without giving notice to the corporation, had issued a warrant for empannelling a jury to assess the damages sustained by an individual by the location of the turnpike road over his lands, but pending the petition for the certiorari, the corporation, in order that they might enter upon the land and make their road within the period allowed by their charter, paid the damages assessed by the jury, it was held, that the payment could not be considered to be voluntary, and that the writ of certiorari ought not to be quashed as having issued improvidently.
    A writ of certiorari to the Court of Sessions was grantee in this case, at April term 1828, because they had issued a warrant for empannelling a jury to assess the damages sustained by the respondents by reason of the location of the Central Turnpike road over their land, without having given notice to the turnpike corporation to show cause why such warrant should not issue. At October term 1828, the respondents moved that the writ might be quashed as having improvidently issued, Decause, during the pendency of the petition for a certiorari, the corporation paid the damages assessed by the jury and costs, and entered upon the land and made their road. This motion was argued at the same term, and again at the present term.
    
      J. Davis and Sibley supported the motion.
    The statute requires that an application for a jury should be made at the term of the Court of Sessions next after the acceptance of the return of the committee. That time has gone by ; so that if the proceedings shall be quashed, the corporation will hold the land and recover back the price of it, leaving the respondents remediless. The only security upon which the landholder can rely, is given by St. 1807, c. 113, which provides, that a turnpike corporation shall not, without the consent of the owner, enter upon land, until they shall have paid or tendered the damages ascertained by the committee authorized to assess the sáme. In the present instance it is believed that the franchise yields no income to which the respondents might have recourse for indemnification.
    The granting of a certiorari is a matter of discretion, and the Court will not order one for mere defects of form. Ex parte Miller, 4 Mass. R. 565.
    Here there has been an acquiescence by the corporation so far as to take the land for the damages found, and the Court will not set aside the damages and leave the land incumbered by the way. Commonwealth v. New Milford, 4 Mass. R. 446.
    The Court will not, upon certiorari, quash the proceedings of an inferior court, unless the parties can be restored to the situation they were in when the error happened. Monnell v. Weller, 2 Johns. R. 8. Here the respondents will lose the benefit of a jury.
    Where there has been an accord with satisfaction of a judgment, it will not be reversed upon certiorari, although it was erroneous. Potter v. Smith, 14 Johns. R. 444. In the present case the corporation have voluntarily paid the damages. It is no answer to say they tendered by compulsion, for that they could not otherwise obtain the land. „ They made the tender in order to get the equivalent.
    
      Newton, contra,
    
    said that when this verdict shall be set aside, the case will stand right if the respondents refund the costs of the verdict, together with the difference between the damages assessed by the jury and the estimate of the committee.
    
      Oct. 5th
    
   Per Curiam.

The only ground relied on for quashing the writ is, that while the petition for it was pending, the corporation voluntarily paid the damages assessed by the jury ; and this payment is considered by the respondents as an acquiescence in the justice of their claim. If there had been a voluntary payment and acquiescence, with a full knowledge of all the circumstances, the corporation ought to be concluded. But they contend that this was in the nature of a compulsory payment; that they were obliged to make the tender before they could enter upon the land ; and that they would otherwise have lost their franchise, as the time allowed them by their charter for making the road had nearly expired. And undoubtedly, if a person, in order to enable himself to enjoy his legal rights, pays a demand, the validity of which he contests, this cannot be binding on him as a voluntary payment. The payment having been made by the corporation without any intent to acquiesce, it ought not to affect their rights.

As to the suggestion respecting the responsibility of the cor poration, it is sufficient to say, that the respondents will have a right to retain the money they have received, except so much as shall be adjudged to be repaid.

But the question is, whether, by sustaining this writ, that injustice would be done which would show that it ought not to be sustained. ' Unless we can ascertain that the verdict is more correct than the estimate of the committee, we cannot say that injustice will be done by quashing the proceedings.

It depends on that fact. The jury might have partial views, or the committee might.

It is said the court will not quash proceedings, unless they can restore the parties to their former situation. But this cannot be a general rule. As, suppose a verdict to have been fraudulent; it would be the duty of the Court to quash the proceedings, although the fraudulent party might thereby be injured.

It is objected that the defect here is matter of form. But do not consider it to be so. The ground of complaint is want of notice ; which is important.

Motion to quash the writ overruled.  