Thompson v. Jackson, ex. dem. Thompson — 1 Wend. 76

Majority

p. 76

Thompson and others ads. Jackson, ex. dem. Thompson and others.

Headnote

Where a «eretered” motion for judgment as m case ot nonsuit will be A ' A ’P 'f appears ‘that the^ defendant nesses have not on^tíiífilingof the nisi p-ms

Motion- for judgment as in case of nonsuit for not proceeding to trial. The excuse offered by the plaintiff was, that ys attorney was prevented by an accident from arriving at , 1 v ° the circuit until 10 o’clock A. M. of the second day, and that J * consequently the nisiprius record was not filed ; that on his arrival, he learnt that the defendants’ attorney had obtained a rule of ne recipiatur, which he immediately moved to set aside, and shewed by affidavit that the defendants and their witnesses had not departed court. ■ The circuit judge, however, refused to vacate the rule.

By the Court,

The excuse offered, and the

fact that the defendants and their witnesses had not departed court, would have authorized the vacatur of the rule of ne recipiatur. The defendant was entitled to the rule when he obtained it; but having elected to retain it, and refusing to permit the plaintiff to try his cause, he is not entitled to the effect of his motion. It is therefore denied, the costs to abide the event of the suit.

intimated that hereafter, should a like case arise, the court would impose costs upon the defendant.