Van Der Mark v. Jackson — 1 Cole. & Cai. Cas. 231

Majority

p. 231

Wilhelmus Van Der Mark v. James Jackson, on the demise of Ostrander.

Headnote

IN ERROR. Judgment having been entered in the court of common pleas for the county of Ulster, on a verdict for the now defendants, the present plaintiff brought his writ of error returnable in this court. To this the clerk of the common pleas made his return in the manner said to have been usually practised in that county, by annexing a transcript of the record, and delivered it to the now plaintiff’s attorney, who sent it back with directions to annex the original record. This was not done but the writ re-delivered to the plaintiff’s attorney, with only the transcript returned.

The defendant, without any service of a scire facias quare executionem non, and without giving any rule to' assign errors, nonprossed the plaintiff’s writ, before it had been returned and filed, served him with a copy of a bill of costs, and sued out a writ of possession.

Gardinier,

on affidavit of these facts, moved to set aside the judgment of nonpros for irregularity, and that if any writ of possession had been issued, a writ of re-restitution be awarded.

As the writ was never returned, this court was never in possession of the cause ; whatever has been done here, must therefore be set aside. Take your rule.^[1]

* See Leith v. Mac Ferlan, 3 Burr. 1772. Accourt v. Smith, 1 Ld. Raym. 339.