Jackson ex dem. Wells v. Breese — 6 Cow. 42

Majority

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Jackson, ex dem. Wells and others, against Breese.

UTICA,

Aug. 1826.

Headnote

Where a cause goes off at the circuit, because the plaintiff is not ready, he cannot recover the costs of that circuit, though he finally succeed in the cause.

Ejectment. Verdict and judgment for the plaintiff. The cause had been noticed for trial twice. On the first notice, the plaintiff not being ready at the circuit, the cause went off for that reason. The plaintiff ⅛ attorney insisted on having his costs of that circuit taxed in the final bill; and that they should make a part of the judgment ; but

Storrs, first judge of Oneida, before whom the taxation took place, excluded them.

T. E. Clarke, therefore, moved for a retaxation.

J. Platt, contra.

Judge Storrs was right in disallowing these costs. Where a cause goes off at the circuit, because the

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plaintiff is not ready, he cannot recover his costs of that circuit, though he is finally successful; and so we have often decided.

Motion denied.