Cyrus Jackson v. Rodolphus Mann

Cyrus Jackson v. Rodolphus Mann. « WOODWORTH moved for judgment as in case of nonsuit, for not proceeding to trial, according to notice, on an affidavit, stating, that the cause being duly noticed, the defendant issued, and served subpoenas on his witnesses, after which, the notice was countermanded. Schoenhoven, contra, read an affidavit setting forth, that the plaintiff, for want of a material witness, who could not be then found, was unable to proceed to trial, and, that notice of countermand had been given four days before the circuit court; he, therefore, insisted there was no ground for the application, and that from the principle of Brandt v. Buckhout, the defendant could not only take nothing by his motion, but the plaintiff was entitled to his costs for opposing. Woodworth distinguished this from the case mentioned, by the defendant’s having been here put t© - costs. Ante, p. 186 [MAJORITY — Per Curiam.] Per Curiam. The only question here is, who shall pay the expense. The plaintiff must, certainly, bear the charges of his own countermand. That, and t^ie not*ce> are equally his acts ; the expenses, therefore, incurred after notice, always fall to him when he countermands. The judgment of nonsuit must, therefore, be refused, but the plaintiff to pay the defendant the costs of subpoenaing his witnesses prior to the countermand.