The opinion of the court was delivered by
Van Syckel, J.
The declaration of sale must be set aside, because the assessment upon which it is founded is illegal. In making the assessment, the commissioners did not make a written report, as required by section 42 of the city charter. Pamph. L. 1855, p. 716; State v. City of Hudson, 5 Dutcher 104, 110.
Lapse of time cannot be set up against the prosecutor where the certiorari is in aid of an ejectment. The suggestion by the defendants that the absence of the report is not proof that it was not made, cannot avail them.
The rule in this state established by the Court of Errors is that when a return is made to a writ of certiorari, the presumption is that all the proceedings are before the court, and the burden will He on the defendants to supply, by further return or by evidence, any alleged omission. State, Wilkinson, pros., v. Inhabitants of Trenton, 7 Vroom 499; Woodbridge v. State, Allen, pros., 14 Vroom 262.