Doe Ex Dem. Kirkman v. Dixon

Pearson, C. J.

At a special term of the Court, June 1870, plaintiff not being ready for trial, because of the want of his title deeds, which was accounted for to the satisfaction of his Honor, it was ordered that the case be continued, ‘£ for plaintiff, on payment of cost.”

At Eall Term, 1870, his Honor ruled that the trial should proceed, provided the plaintiff paid into Court the cost of the preceding term.

It was the province of his Honor to put a construction upon the terms of continuance,<£ continued for plaintiff, on payment of costs;” did this mean the costs of the term, or all of the costs of the case; we concur with his Honor. In the ambiguity of words, it was his duty to look at the attendant circumstances, and it is a matter of every day occurrence on the circuit, if through the laches of the party, and especially of his counsel, the trial is delayed, he must pay the costs; — that is, the cost incident to the delay — to-wit, of the term, and no one ever before imagined that such general words, would include the whole costs of the action, for the reason that such penalty would exceed the damage done by the laches of the party.

No error.

Per Curiam:. Judgment affirmed.