Malin v. Kinney — 1 Cai. 117

Majority

p. 166

Malin against Kinney. The Same against Lane.

Headnote

J.f a plaintiff get relieved Rom his own stipulation, he restores the defendant to all rights as he stood when the stipulation was entered into.

These causes were noticed for trial at the circuit held for Ontario, in June, 1802. The defendants attended with their witnesses, hut the plaintiff not bringing on the causes, the defendants agreed to waive taking advantage of it, provided the plaintiff would consent that the two above suits should abide the decision of a ease made in one by the same plaintiff against George Brown, which turned on the same point, and had, together with another of the same sort, been tried. The plaintiff acceded to the proposition, but at the last term applied to the court to be released from Ms engagement. This the court was pleased to order.

Emott

now moved for judgment of nonsuit, and that the plaintiff pay the costs not only of not proceeding to trial in 1802, but those also for not trying at the last circuit.

He contended, that as the agreement was done away on the application of the plaintiff, the defendant had a right to those costs which he waived only in consequence of that agreement. The agreement was the consideration of the waiver, and the consideration being taken away, he had a right to insist on not waiving. Then as to the costs of-the last circuit, it was clear he was entitled; because, as the plaintiff had been released and had not tried, it was manifest he was in default, and costs due.

Stuart, contra,

read an affidavit, stating that the rule to discharge the agreement was made at the latter part of the last term, and that, from the late information he received of it, he could not avail himself, at the last circuit, of the advantage it afforded.

The application is for judgment as in case of nonsuit, and to pay two sets of costs; those of June, *1802, and those of the last circuit. Four [*118] causes were depending: two were tried, and, after the court rose, there was a stipulation that the two causes not tried should abide the same event as those, which had been tried. An application was made in May last to be relieved ;^[1] that the two causes not tried might be restored, and the plaintiff not bound by his stipulation. This was ordered, and the causes restored, as in June, 1802. If the plaintiff was relieved, the defendant was also; and then the stipulation being vacated, the causes must stand in the same situation as in June, 1802. If the defendant had then applied, nothing appears why the rule should not -then have been granted, at least a rule to stipulate and pay costs. The only reason to excuse now offered is, that the plaintiff did not receive notice of his own rule. Both circuits mentioned have passed without trial; therefore, the defendant must have the effect of his motion, unless the plaintiff stipulate to try the cause at the next circuit, and pay the costs of that in June last.

On stipulating and paying costs,

Motion denied.

Radcliff and Livingston, Justices, absent.

(a) (a) See ante, 1, Bogert and Lewis v. Hildreth, when he will not be lieved.