Majority
p. 415The People against Merritt. UTICA, August, 1827.
Headnote
an^ttáehment for not pajong the8 lessor “fa ejectment, on judgment for the defendant “a ““aT^afast the nominal costs must first to exhibited.¿OWEN & Neff, defendants in ejectment, at the suit of Jackson ex dem. Merritt, having recovered a verdict, and judgment for costs against the nominal, plaintiff, caused a <Jeraand of the taxed costs to be-regularly made of the les- , & j sor of the plaintiff' except that no ca. sa. for the costs against the nominal plaintiff, was shown to the lessor at the time. The lessor, (now defendant,) being brought up on attachment for non-payment, answered this fact on interrogatories; whereupon,
W. H. Maynard moved that he be discharged.
J. A. Collier, contra.
We see no substantial ground for requiring the exhibition of a ca. sa.; but it is so with many of our rules of practice. It is no reason for rejecting them, that we cannot see at once the principle, on which they rest. The uniform course has been to show the ca. sa.; and this accords with the rule laid down in the books.[1] The defendant must be discharged with costs.
Motion granted.
(a) (a) Such is the settled practice of the K. B. (Tilly v. Baily, Mich. 6 Geo. 2. Runn. on Eject. 416, 417. Adams on Eject. Ruggles’ ed. 303, S. C.) But the ca. sa. may be omitted in the C. P. (Adams on Eject. Ruggles’ ed. 303, and note (h), Doe v. Salter, 3 Taunt. 485.)