Majority
p. 558Hart and others vs. Wood and others.
Headnote
One of several defendants may apply for costs against a plaintiff for not try» ing his cause pursuant to notice, on shewing the assent of his co-defend. ants for him to apply separately, or their refusal to unite with him in the application.■ J. Edwards, in behalf of Wood, one of the defendants,
moves for costs of the circuit, the plaintiffs having neglected to bring the cause to trial pursuant to notice.. There were four other defendants who did not unite in the application, but consented to the motion being made. At a previous non-enumerated term, a similar motion was made and denied, because such consent had not been obtained. Their consent now being shewn, the motion was renewed.
By the Court,
The defendant is entitled to a rule for costs. He cannot move alone for judgment as in case of nonsuit, there being other defendants; but it is right that he should have his costs for attending at the circuit. When this motion was made at a previous day, we held that where there are several defendants, and only one of them
p. 559
asks for costs against the plaintiff, for not proceeding to trial pursuant to notice, that the motion ought not to be granted, unless the party had obtained the assent of his co-defendants for him to apply to the court separately, or they had refused to unite with him in the application. The defendant now having obtained the required assent, no objection is perceived to granting the motion.
Motion granted.