Thompson v. Jackson, ex. dem. Thompson , 1 Wend. 76 ( 1828 )

By the Court,

Savage, Ch. J.

The excuse offered, and the

fact that the defendants and their witnesses had not departed court, would have authorized the vacatur of the rule of ne recipiatur. The defendant was entitled to the rule when he obtained it; but having elected to retain it, and refusing to permit the plaintiff to try his cause, he is not entitled to the effect of his motion. It is therefore denied, the costs to abide the event of the suit.

Sutherland, J.

intimated that hereafter, should a like case arise, the court would impose costs upon the defendant.