Ex parte Fort

6 Cow. 43

• Court: New York Supreme Court
• Decided: August 15, 1826
• Status: Published

Opinion

Curia.

The statute (1 R. L. 91, s. 1,) makes it the duty of the sheriff to return the plaint to the next court of common pleas. It is, in this respect, like any other process in his hands. Now, whether the plaintiff had a right, in this case, to withdraw the process or not, we think the common pleas were correct in the rule which they made. The defendant should not be deprived of his non pros by the act of the plaintiff in withdrawing the process. It is served. The defendant’s duty to himself, requires that he should defend his rights. He retains an attorney, incurs expense ; and his only remedy for his costs, in ordinary cases, is by non pros. He has, we think, the same remedy in replevin. If, as insisted by the counsel for the relator, it is necessary that the process be actually returned, to warrant the non pros, this, of itself, shews the importance of allowing process to be filed nunc pro tunc, in order that the proceedings may be sustained in point of form. And more especially where the process is withheld from the files by the plaintiff.

The motion must be denied.

Motion denied.