Jackson ex dem. Thompson v. Thompson — 7 Cow. 426

Majority

p. 426

Jackson, ex dem. Thompson and nine others, against Thompson and others.

UTICA,

August, 1827.

Headnote

On the rule in^cfseTof &en?fUitbe”m>tto complied with, judgment^may nmc pro tune as of the term when the rule Sough another term is suffered to elapse before the second rule is entered. And in the latter case, semble, that it may also be entered as of the previous term intermediate the entry of the 1st and 2d rule.

The demand of costs under the rule nisi, for judgment as in case of nonsuit in ejectment, may be of any one of the lessors;

Or, semble of the'plaintiff’s attorney.

At February term last, the defendants obtained, on motion for judgment as .in. case of nonsuit for not proceeding trisil, a rule that the motion be granted, unless the plaintiff should stipulate to try at the next circuit, and pay cercogt& rphe stipulation was given, and, on the 81st of ;aRt, the costs, being first duly taxed, were demanded J ’ ' ° of A. ¡Neeley, one of the lessors of the plaintiff. Not being paid within the 20 days, on the 2lst of June, the defendants *entered a rule for judgment of nonsuit nunc joro tunc, as of tt, i ___„ , February term.

p. 427

The plaintiff treated the judgment as a nullity; and proceeded with his cause at the circuit; where, the defendants refusing to appear, a nonsuit was entered for not confessing lease, &e.

Motions were now made by the defendants, to set aside the nonsuit, &c., and by the plaintiff to set aside the judgment as in case of nonsuit. It was agreed by the counsel, that both must depend on the regularity of the latter.

J. A. Spencer, for the plaintiff,

objected that the judgment as in case of nonsuit was irregular for two reasons: 1. Because it was entered as of February term, whereas it should have been as of May term; 2. That the demand of costs should have been of the attorney for the plaintiff, who represented all the lessors of the plaintiff, or of all the lessors, not one of them. To the latter point, he cited Dunl. Pr. 320, 321, 360, 561.

G. B. Throop, contra.

The rule for judgment was regularly taken, as of February term, when the original rule was entered. In this case, perhaps it would have been well, either as of February or May term.

The costs were properly demanded of one of the lessors of the plaintiff. On the authority of Gilliland v. Morrell, ( 1 Caines’ Rep. 154 , 155,) a demand, either of the party or the attorney, seems to be sufficient, in order to a judgment upon this rule nisi.

But, under the circumstances of the case, we set aside the nonsuit at the circuit, and the judgment as in case of nonsuit, all costs to be paid by the plaintiff; with a view that the cause mav be tried on its merits.

Buie accordingly.