Malin v. Kinney

1 Cai. Cas. 117, 1 Cole. & Cai. Cas. 192

Opinion

Per Ouriam.

The application is for judgment as in case of nonsuit, and to pay two sets of costs; those of June, *1802, and those of the last circuit. Four [*118] causes were depending: two were tried, and, after the court rose, there was a stipulation that the two causes not tried should abide the same event as those, which had been tried. An application was made in May last to be relieved ;

(a) that the two causes not tried might be restored, and the plaintiff not bound by his stipulation. This was ordered, and the causes restored, as in June, 1802. If the plaintiff was relieved, the defendant was also; and then the stipulation being vacated, the causes must stand in the same situation as in June, 1802. If the defendant had then applied, nothing appears why the rule should not -then have been granted, at least a rule to stipulate and pay costs. The only reason to excuse now offered is, that the plaintiff did not receive notice of his own rule. Both circuits mentioned have passed without trial; therefore, the defendant must have the effect of his motion, unless the plaintiff stipulate to try the cause at the next circuit, and pay the costs of that in June last.

On stipulating and paying costs,

Motion denied.

Radcliff and Livingston, Justices, absent.

See ante, 1, Bogert and Lewis v. Hildreth, when he will not be lieved.