
    Wait against Durand.
    ALBANY,
    August, 1812.
    in an action tlce for an act officlai^capafendantplead éd the geneíjustifirationt was arepiication^ to the and°a demurrer judgment the defendant^
    On the general issue, a judgment of mmprosvi asobtained for not proceeding to trial; it was held, that the eMtitied. on^the non-pro. but not on the demurrer.
    
    And after doubledouble costs had been issues, ^and costs paid, and part of the cost paid, and an execution issued for the court*ordered a retaxation of the costs, at the expense of,the plaintiff.
    THIS was an action of assault and battery, and for false imprisonment, brought against the defendant, as a justice of the peace, for an act done by him, in that capacity. The defendant pleaded, 1. Not guilty; 2. A special justification. On the issue on the first plea, the plaintiff was nonsuited, for not bringing cause to trial, according to the practice of the court; to the second plea there was a replication, demurrer and joinder, on which judgment was given for the defendant. In August, 1811, double costs were taxed, both on the judgment of nonpros and on the demurrer. Part of the costs were paid by the plaintiff December 1811. In February last, an execution was issued for the residue, on which proceedings were stayed by a . , , - judge s order.
    A motion was made to set aside the execution.
   Per Curiam.

The case of a judgment for the defendant, on demurrer, is not within the act giving double costs. (Stone v. Woods, 5 Johns. Rep. 182.) The plaintiff, therefore, was entitled to single costs only on the judgment on demurrer; but lie was entitled to double costs jon the issue of fact, and the judgment of nonpros thereon. The costs ought to have ^ so taxed; and it is not too late to have that error corrected, "We» accordingly, order a retaxation of the costs, with a stay of the execution in the mean time; and that the balance of the sum due on such retaxatioD, and no more, be collected on the execution. The cost of retaxation must be paid by the plaintiff; and neither party recover costs on this application.  