Kirby v. Sisson — 1 Wend. 83

Majority

p. 83

Kirby vs. Sisson.

Headnote

A rule that the defendant pay the costs of putting off a trial at the circuit, will be granted by this court on application.

This cause was noticed for trial at the Essex circuit, in 1827, and was put off by the defendant for want of testimony, on payment of costs. The trial went off, the costs were taxed, but not paid, and a motion is now made for a rule of this court, requiring the defendant to pay the costs.

R. Weston, for plaintiff.

S, Stevens, for defendant.

By the Court,

This motion is opposed, because it is said the plaintiff ought to have sought his remedy in a different mode : that he ought to have insisted on immediate payment or proceeded in the trial; to have awaited the event of the suit, and taxed the costs in the general bill, or served the defendant with a copy of the rule at nisi prius, and a copy of the taxed bill, and on demand and nonpayment, to have applied for an attachment in the first instance. The two first courses undoubtedly might have been pursued; so, also, the latter might have been adopted, if a rule had been entered; but yet this application is proper, if

p. 84

the party thinks fit to pursue it; the rule for costs may or may not have been entered ; and if the plaintiff chooses to ask for an order of this court for the payment of those costs, he is entitled to if. The motion is granted, with costs.