Peter Brooks v. Abijah Hunt

Peter Brooks v. Abijah Hunt. ISSUE had been joined on the first of March last, but the cause, the venue of which was laid in the county of Albany, had not been brought on at the last April circuit. Sanford, on these facts, moved for judgment as in case of nonsuit. Paris, contra, showed, that the defendant had delayed the cause by obtaining time to plead till the first day of March; that from the matter of the plea then delivered, there was reason to believe it would be necessary to subpoena witnesses from JYew-York ; and that from the short interval between the receipt of the plea and the circuit, he had no opportunity of consulting with the plaintiff, who resided in the most westerly part of Montgomery. From these circumstances, he argued that the motion ought to bé denied without either costs or stipulation. Sanford, in reply. The words of the statute are, that where issue is joined and the plaintiff “neglect “to bring such issue to be tried according to the “ course and practice of the court,” the defendant shall be entitled to judgment as in case of nonsuit. From the 1st day of March, to the circuit in April was time enough to notice. 1 Rev. Laws, 353. sec. 12. [MAJORITY — Per Curiam. Thompson, J.] Per Curiam. The defendant had a right to move, and, therefore, though we deny his motion, it must be on payment of costs ; but, from the circumstances of the case, the plaintiff is excused from stipulating. Thompson, J. I do not think this according to practice. The cause was long enough at issue to allow of a notice, and he ought, therefore, to stipulate. *** It was said by the bench, that in all cases the period within which costs are to be paid is twenty days.