Majority
p. 601Jackson, ex dem. Prior, A. Knap and E. Knap, against Brown.
Headnote
Though the act of God be the cause of not proceeding to trial according to notice, yet, if the impossibility of proceeding be discovered in time for a countermand, which the plaintiff neglects to give, he must pay costs.This was an application for costs for not proceeding to trial.
p. 602
The plaintiff relied on the prevalence of the yellow fever, which after noticing for the circuit, prevented him from obtaining a paper necessary on the trial.
It does not appear any countermand was ever given, though there was time for doing so, between the period when the impossibility of procuring the document was discovered, and the day fixed for the circuit. It is true, the act of God is to work injury to no one; but when, as here, the impossibility induced by that act could have been communicated to the defendant -in season, to to have prevented his attendance on the circuit, and this was omitted, the fault was with the plaintiff, and he must pay costs.[1]
Motion granted.
(a) (a) See Jackson v. Mann, ante, 123