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Jackson ex dem. Prior v. Brown

1 Cole. & Cai. Cas. 299 Court N.Y. Sup. Ct. English

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p. 299
Jackson, ex dem. Edmund Prior, Abraham Knap and Eli Knap, v. Haley Brown.

Headnote

THIS was an application for costs for not proceeding to trial. The plaintiff relied on the prevalence of She yellow fever, which, after noticing for the circuit, prevented him from obtaining a paper necessary on she trial.

It does not appear that 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 have prevented his attendance on the circuit, and this was omitted, the fault was with the plaintiff, and he must pay costs.