Mix v. Brisban — 2 Wend. 286

Majority

p. 286

Mix vs. Brisban.

Headnote

Where a party tímaoste'of*a circuit, but neglects to apply at the next tomforce tile payment of the same, the costs must aGfthehauitVent

Motion for costs. This cause was noticed for trial m April, 1828, at the Genesee circuit. The circuit judge refused to try the cause, because the defendant had given no- ... . tice of an application for a commission to examine witnesses) although- such notice was given after the notice of trial had been served. In April, 1829, the cause was again no- * , , , _ _ „ ticed. On the first day of the circuit it was called, and the trial put off for the day, on the application of the defendant on payment of costs. The next day the judge was taken sick and unable to continue the circuit, and the cause was not tried. - The plaintiff moved for the costs of attending prepared at both circuits.

H. Brown, for plaintiff.

• E. B. Mien, for defendant.

The plaintiff was entitled to the costs of the circuit in 1838, but he should have applied for them at the next term after the circuit. Having omitted to do so, he must now be content to have them abide the event of the' suit As to the last April circuit, he can demand only the costs of the first day. For aught that appears, on the second day the defendant may have been ready for trial. At all events, the cause was not tried after the first day, by reason of the indisposition of the judge. The plaintiff may take a rule for the costs of the first day of the circuit, but no costs are .allowed to either party on this motion.