Larroway ads. Lewis and others; The same ads. Van Loon and others

Larroway ads. Lewis and others. The same ads. Van Loon and others. Ejectment. VAN VECHTEN moved to set aside the attachments which in these two cases had been granted for costs of putting off the trials, and that there be a retaxation. He contended that attachments are ordinarily granted on rules to shew cause, and are never made absolute in the first instance, but in very flagrant cases ; and that if the party answer he shall be discharged from the attachment; and cited 1 Bac. Abr. 183. B. 2 Hawk. Plea. Cr. 214. He further insisted, that there must be a demand made of the coils after the bill has been regularly taxed, and at the time of serving the rule to shew cause, before the party can be considered as in contempt. He cited 1 Barnes 120. 1 Lilly's Abr. 162. Besides he insisted that according to 1 Salkield 83, no attachment will lie at all for the costs of putting off a trial. C. Elmendolph in reply contended, that in England the attachment is always absolute in the first instance. He cited Tidd’s Pr. 364. Runnington on Ejectment 142. 1 Sellon 415. [MAJORITY — Per Curiam.] Per Curiam. Whenever a cause goes off on motion of the defendant upon payment of costs, the plaintiff has his election, either to wait the event of the suit, and have all his coils taxed together, or he may make them out instanter under the direction of the Court, (subject) however to be reviewed on a future taxation if required) and demand them immediately, and if not paid he may proceed with the trial; or he may waive this privilege and resort to his attachment, but if he does so, he must first have his costs regularly taxed on. a proper notice as in other cases, and that notice must be served on the attorney in the suit, and not on the counsel, as it has irregularly been in this instance. Had he done this he would have been entitled to his attachment instantly, without a previous notice. The notice in this case having been served on counsel, and the taxation having been made the same day notice was given, the taxation and all proceedings founded on it were irregular. As to the case mentioned from Salkield, it is anonymous and stands alone; we lay no weight upon it. Let the attachment be set a side with costs.