Majority
p. 8Monnell, Treasurer of the Newburgh Turnpike Company, against Weller. Same against Ward.
Headnote
In an action tícelo * 'tins peace, the nonsuifedjbut warded no a" costs. On a certiorari, this court considered thejudg-complete, and SmT6 or*”reverse it-These causes came before the court, on writs of cer-tiorari from a justice’s court. The plaintiff below brought actions against the defendants, for penalties under the 12th section of the act for. establishing a turn-Pike> (Raws of New-York, vol. 2. p. 459.) for forcibly passing one of the gates of the turnpike, without ,, Paymg toll.
The justice ruled, that the plaintiff should be confined in his proof to the particular day laid in the declaration, an<^ ^10 nonsuited the plaintiff, but awarded no costs, The question which now arose, was, whether a certiorari could be brought to set aside a nonsuit before a justice.
Fisk, for the plaintiff in error.
Storey, for defendant in error.
Though the court refused to interfere with the judgment of nonsuit, it may be of use, in regard to the practice in such cases, to state their opinion.
The returns to the certioraris, in these causes, show that the plaintiff below was nonsuited at the trial, but that no costs have been adjudged against him. The nonsuits were improperly granted, but this court cannot restore the party to the state he was in, when the non-suit took place; and thus it turns out, that the only object in prosecuting these certioraris, is to throw a bill of costs on the defendant. We think the judgment below incomplete, and incapable of reversal or affirmance, and therefore give no judgment.