Townsend v. Cowen — 19 Wend. 639

Majority

p. 639

Townsend vs. Cowen.

Headnote

The defendant in a writ of error for error in fact is not entitled to judgment as in case of nonsuit if the plaintiff neglect to bring on to trial the issue joined pursuant to notice j but he is entitled to the costs of the circuit.

This was a motion for judgment as in case of nonsuit, or that the plaintiff pay the defendant the costs of preparing for the defence of the suit at the last December circuit held in and for the county of Yates. The suit is a writ of error prosecuted for error in fact, was noticed for trial by the plaintiff, and neglected to be brought on to trial when called on the calendar.

J. L. Wendell, for the defendant.

H. Welles, for the plaintiff.

By the Court,

It is well settled that either party may notice for trial an issue on error in fact. 2 Saund. 336, n. 4. Dennis v. Dennis, 2 Archb. Pr. 240. 244. 2 Tidd, 1122. There is nothing in the suggestion that our statute, 2 R. S. 423, § 81, 82, has altered the practice in this respect, for it is but a copy of 14 Geo. 2, ch. 17. But under our practice, 18 Wendell, 519, and n., the defendant is entitled to the costs of the circuit and of this motion.

Ordered accordingly.