Majority
p. 126Elijah Ranney against Joseph Crary.
Headnote
IN a former term this cause had, after joinder m error, brought up for argument, but the court observing that the justice had made no return to the certiorari attached to directed a rule, ordering one by the first day of the next term. Before a service of this could be effected, the justice had quitted the state, and had never return e d within it.Brees, for the defendant,
now moved to nonpross the writ, and have his costs- allowed.
Why did you join in error? Your costs are of your own seeking, and without any fault in the plaintiff. Y o u may sue out execution on your judgment below ; but the plaintiff must have liberty to discontinue without costs.