Mahony v. Holland ( 1810 )

OPINION of the Court, by

Ch. J. Boyle

The practice of giving a judgment for the costs of a continuance granted pending the suit, is incorrect : that practice (though prevalent in this country) is unwarranted by any adjudication, and we apprehend if established would lead to mischievous consequences. It would involve the absurdity of having as many final judgments m every canse as there were continuances granted at the costs of either party, to each of which judgments a writ of error might be prosecuted to this court. It would greatly enhance the expences of the litigants, by allowing the clerks to charge for all the forms of entering a judgment, taxing costs, issuing execution, &c. instead of a fee for entering the order for costs, which he would alone be entitled to if the regular practice were pursued. It would subject the real as well as the personal estate or the party, to the payment of the costs by execution in the first instance, and when the continuance waa produced by the unavoidable absence of the party from sickness or otherwise, his property might be sacrificed without his knowledge ; whereas an order ^(a) could act upon his person m the first instance, and operate as a notice to him of his liability. P

We are therefore of opinion, that the judgment for the costs ot the continuance granted pending the suit, was improper ; but this impropriety does not affect the principal judgment to which the writ of error has been prosecuted, and the former opinion and judgment of affirmed^ ^ *° k’ are £o stRnd unaltered and

(a) Vide Sin*, glcton vs C*rr% ▼Ob I» 5SS*-