Phelps v. Eddy — 1 Cai. 251

Majority

p. 324

Phelps against Eddy.

Headnote

If a defendant move for judgment of nonsuit contrary to good faith, the court will make him pay the costs of opposing.

Woodworth, on an affidavit stating that issue had been joined in this cause in November, 1801, and noticed for trial at the last circuit for the county of Columbia, but not brought on, moved for judgment as in case of nonsuit.

Williams

read a counter deposition acknowledging the notice, but adding that the attorney for the defendant did not attend; that' his counsel, however, was there, with whose consent an agreement was made between the agent for the defendant and the plaintiff’s attorney, that the

p. 325

cause should not he brought on before the Friday in the second week of the circuit, on the Thursday next preceding which day the court adjourned; that it was impossible to bring on the trial during the circuit, because, in consequence of the agreement entered into, the plaintiff had sent his witnesses home, and they were not to return until the Friday appointed.

Let the defendant take nothing by his motion, and pay the plaintiff his costs for opposing.

Motion denied, with costs.