Van Der Mark against Jackson, on the demise of Ostrander

Van Der Mark against Jackson, on the demise of Ostrander. The defendant in error cannot non pros the plaintiff's writ before it is returned. 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 redelivered to the plaintiff’s attorney with only the transcript returned. The defendant, without any service of a scire facias guara executionem non, and, without giving any rule to assign errors, non grossed 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. the judgment of non pros for irregularity, and that if any writ of possession had been issued, a writ of re-restitution be awarded. Oardinier, on affidavit of these facts, moved to set aside A writ of error may be nonprossed for want of alleging diminution; if there be no rule for diminution, the next step is a rule to assign errors, without giving of which a non pros cannot, in that stage, be signed. [MAJORITY — *Per Curiam.] *Per Curiam. As the writ was rever returned, this court was never in possession of the cause. Whatever has been done here, must, therefore, be set aside. See Leith v. Mac Ferlan, 4 Burr. 1772. Motion granted. Ante, 250. Abeel v. Wolcott. The court refused to quash a writ of error because the transcript was not returned and filed. Aeonrt v. Swift, 1 Ld. Raym. 329.' It would seem that before the return of a writ of error application to quash it must be made to the court from whence it issues, after the return to the court in which returnable. Lloyd v. Slutt, Doug. 350. In which case the writ must be entered on the roll, before the defendant can move to quash. Kent v. 6 Mod. 138. See also Lewis Griswold, 1 Wend. 292. Morris v. De Witt, 5 Id. 71. Ferguson v. Jones, 12 Id. 241.