Smith v. Sutts
New York Supreme Court
. FROM the return to the certiorari in the cause, it appeared, that when the jurors were called, to try the cause, several of them did not appear: for want of a „ . • 1 1 ’ sufficient number, the justice directed the constable to summon some of the. bystanders, but none were found competent to serve on the jury.
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. FROM the return to the certiorari in the cause, it appeared, that when the jurors were called, to try the cause, several of them did not appear: for want of a „ . • 1 1 ’ sufficient number, the justice directed the constable to summon some of the. bystanders, but none were found competent to serve on the jury. The plaintiff then requested that a new venire should issue ; but the justice nonsuited him, alleging as a reason, that the plaintiff had not asked for an adjournment of the cause-, nor for a tales de circumstantibus. Judgment was given, that the. defendant should recover his costs…
1Opinion of the Court
PerCuriam.
Thére being a default of jurors, the plaintiÉT below, required a.venire de novo; the justice declined granting it, and nonsuited the plaintiff, on the ground of his default in not paying a tales de circumstantibus, and also adjudged costs against'him. The non-suit was compulsory, and the plaintiff below is aggrieved by the costs. If a party be nonsuited, and a judgment be given against him for costs, error lies. The' judgment must be reversed.
Judgment reversed,.
2Cited by5 opinions
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