Jackson ex dem. Gorman v. Hooker — 3 Cow. 15

Majority

p. 15

Jackson, ex dem. Gorman, against Hooker.

Headnote

The plaintiff having made default in trying this cause, pursuant to notice for that purpose, at the first Circuit after issue joined, the plaintiff’s attorney told the defendant’s attorney that if he would make out his bill of costs he would pay it, and stipulateto try at the next Circuit. This he did not do, but now moved for judgment as in case of nonsuit.

S. Forman, for the motion.

D. Woods, contra.

.After first do-fault in trying cause, plaintiff offers, if defendant will make out his bill, to stipulate and pay costs of circuit. Defendant does not make his bill, but moves for judgment as in case of non-suit ; and rule t*lat, i,lalutlS" pay costs of tirade endant pay. costs of Applications to this court, in party may oT^hi^mo&n without com-to he discountenanced.

The plaintiff’s attorney must now stipulate, and pay the costs of the Circuit, but the defendant must pay the costs of this motion. Applications to this Court should cer tainly be discountenanced, where we cannot but see that the party mighthave taken the full efiectof his application without coming here. A formal tender of the money or stipulation was not necessary till the defendant had made out his bill of costs. There is no pretence that the offer of the plaintiff’s attorney was not in perfect good faith, and we consider the proceeding on his part as equivalent to a tender,

Rule accordingly.