Jackson v. Mann — 1 Cole. & Cai. Cas. 356

Majority

p. 356

Cyrus Jackson v. Rodolphus Mann.

Headnote

HENRY moved for judgment, as in case of non-suit, 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 the 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 Oba~ dtah 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 in

p. 357

sisted 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 be 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 nonsuit, 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 after 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.