Majority
p. 68The People against Hallett, Sheriff of Herkimer.
Headnote
The costs of for nonreturning an execujudgment* ^in bMst™an$250 must be taxed commonness costs.In the original suit, (<Spencer et al. v. Sprague ei al.) the plaintiffs recovered judgment in assumpsit, and had execution for damages to $191 24, and costs to $28 96, uPon which the defendant in this suit was attached for not ietu™n§ the execution ; and the only question was, whether there should be a re-taxation, the costs "against the defendant haying been taxed as Supreme Court costs,
M. Hoffman, for the defendant, moved for a retaxation, and cited The People v. Chapman, Sheriff of Seneca, (1 Cowen’s Rep. 214.)
W. Esleeck, contra.
This case comes within the principle of The People v. Chapman, cited for the motion. Though in form a suit by the people, it is really in favor of the party; and Common Pleas costs only aré allowable. The rule is the same, whether the attachment be for neglect to return mesne, or final process.
Motion granted.