Case v. Belknap — 5 Cow. 422

Majority

p. 422

Case against Belknap.

Headnote

Or. moving for judgment as m case o nonsuit, it enough prima facie that the defendant’s affidavit show that the plaintiff had noticed the cause for trial at the circuit, where it is alleged, he omitted to try, without expressly stating that the venue was laid there.

excuse To from trial and cosis, on account of the defendant’s insolvency, the plaintiff must show that he was discharged under the insolvent act after suit brought, and move to discontinue without costs.

That the plaintiff was surprised with a defect of testimony which he could not supply at the circuit, allowed as an excuse from stnulating but not from costs.

Assumpsit. Grim moved for judgment as in case of non-suit on an affidavit that this cause was noticed for trial, by The the plaintiff for the last Orange circuit, but not tried, not gtate where the venue was laid; and

Ross objected this as a defect, and cited 3 Caines, 128, 3 John. 446 . But

The noticing of the cause for trial in Or-laid there. In the cases cited, it does not appear that they ange, is, at least, prima facie evidence, that the venue was had been noticed for trial.

Ross then read an affidavit to show that the defendant wag insolvent; but not that he had been discharged under the insolvent act; and cited 1 John. 141 , 143.

Had the defendant been discharged under the insolvent act, after suit brought, we should allow you to discontinue without costs. But we cannot try the fact of insolvency on this motion by mere affidavit. Besides, you do not seek to discontinue.

Ross then read an affidavit showing that, on coming to the circuit, the plaintiff was surprised by a defect of testimony, which he could not supply during the circuit, and cited 1 John. Gas. 30. „

For this reason, we excuse you from stipulatmg; but not from costs. (Jackson v. Haight, 1 Cain. 93 .)

Rule accordingly.