Jackson v. Mann — 2 Cai. 92

Majority

p. 92

Jackson against Mann.

Headnote

"Where a party has it in his power to enforce payment of costs awarded him by attachment, the court will not take the non-payment into consideration, in forming a subsequent decision on a collateral matter. An attachment in the first instance is not granted against a witness for disobeying a subpoena. Tlie practice is, to move for a rule to show cause. Absence of a plaintiff's witness at the trial, after a due subpoena, is good cause against judgment as in case of nonsuit, and excuses stipulating.

Henry moved for judgment as in case of nonsuit for not proceeding to trial, and also for costs of the last circuit, and those formerly, ordered, on an affidavit, stating a similar motion in a former term, in which the expense of witnesses only was allowed, as the cause had been countermanded by consent; that these costs had been demanded and not paid, after which the cause was again noticed, but neither plaintiff nor his witnesses attending at the circuit, the defendant requested that he and his witnesses might be discharged, which, however, the plaintiff’s -attorney absolutely refused.

Van Yeveren, contra,

read an affidavit, setting forth that the plaintiff had duly subpoenaed one Obadiah Phelps, his principal witness, but that he did not attend, and was, as the deponent verily believed, kept away by the contrivances of the defendant. He insisted also, that as notice of trial for the last circuit was accepted, the defendant had waived his right to the former costs. If the court should bs against him on these points, he hoped they would grant an attachment against Phelps, whose contempt in disobeying the subpoena was the cause of not proceeding to trial.

The absence of the plaintiff’s witness is sufficient to induce us to refuse the application for a non suit, and even to excuse him from stipulating; but as he is in contempt for not paying the costs formerly ordered, let him pay those of the last circuit within twenty days a/ter due demand; in default thereof, the defendant to be at liberty to enter up judgment as in case of nonsuit *As to those costs, which, on the former occasion, were allowed, we do not take them into consideration the defendant having it in his power to enforce them by attachment; and, with respect to the attachment prayed for by the plaintiff, it is not usual to grant one in the first instance, unless some wilful disobedience to the authority of the court is made to' appear; the plaintiff, therefore, can have only a rule to show cause.

Motion denied.