Ives v. Jones , 1 Wend. 283 ( 1828 )

By the Court,

Savage, Ch. J.

The rule laid down in 1 Johns. Cases, 391, is, that if the defendant intends to sue out a commission, he ought to give notice of it before he receives notice of trial, or within a reasonable time after issue is joined, according to the circumstances of the case, and such notice will stay the proceedings. But if he waits until he receives notice of trial, before he gives notice of his intention to apply for a commission, he must pay the costs to that time. This rule has never been intentionally departed from by the court. In all cases where costs have been ordered to be paid, they have been so ordered upon the ground that the defendant did not use due diligence in giving notice of his motion. No such charge can be made against the defendant in this case. Notice of trial was served with the replication, and the defendant gave as early notice as was possible under the circumstances. He is, therefore, entitled to his motion unconditionally, and the costs must abide the event of the cause.