
    RANDOLPH and others against BAYLES.
    ON CERTIORARI.
    Costs of ca. sa., denied on writ of restitution, in certiorari
    
    On motion, on the part of the defendant, to set aside a ca. sa. in this cause, the case was this: Eandolph and others, brought an action against Bayles, the defendant, before Justice Kelly, of Somerset; upon the trial, judgment was rendered for Bayles, the defendant. The plaintiffs, therefore, brought their certiorari, and the judgment of Justice Kelly was reversed in this court. Upon this reversal, the plaintiffs, Eandolph and others, sued out a ca. sa., to recover back the costs, which had been adjudged to the defendant by the justice ; and, also, to recover the costs of suing out the ca. sa., which is set down upon the execution, to be $7.65. The motion before the court was to set aside this ca. sa.
    
    
      
       Vide the report of the same case, contra, by Kirkpatrick, C. J., in 1 South. 109, Hann. v. McCormick, where costs were allowed.
    
   By the Court.

— Delivered by Kirkpatrick, C. J.— So far as it relates to the cost of suing out the ca. sa., let it be set aside. The act gives no costs upon reversals of judgment in eases of certiorari. But so far as it goes to recover the costs, adjudged to the defendant below, and actually paid to him by the plaintiff, let it stand, it being money which the defendant has recovered in consequence of an illegal judgment, it must be restored.

Criticised in Hann v. McCormick, 1 South. 109; Mayor &c. of Jersey City ads. Riker, 9 Vr. 227.  