Doe v. Roe — 5 Hill & Den. 376

Majority

p. 376

Doe vs. Roe.

Headnote

Though, after the award of a feigned issue from chancery, the plaintiff fail to proceed to trial at the circuit pursuant to notice given by him for that purpose, this court will not entertain a motion to compel payment of the costs of the circuit, but will leave the defendant to his remedy in chancery.

Feigned issue from chancery, to try the question of adultery charged by a husband against his wife. The husband noticed the cause for the Albany circuit, but did not bring it to trial; and a motion was now made for a rule that he pay the costs of the circuit. The cause was not noticed for trial by the wife.

C. H. Bramhall, for the motion.

R. W. Peckham, contra.

According to a case in 2 P. Wms. 68, this question is cognizable in the court of chancery. It is said in that case, that if the plaintiff in the feigned issue give notice of trial, and do not countermand it in time, the court of chancery will give costs upon motion, and not put the party to move in a court of law. The remark certainly implies that we may also give the relief. We think, however, it belongs more properly to chancery.

Motion denied.