Slocomb v. Thatcher
Circuit Court of the 10th Circuit of Michigan
Plea in abatement of former suit, in.same cause, pending. Replication that former suit had been discontinued. Rejoinder denying the discontinuance. This suit was commenced Dec. 28d, 1868, immediately after entering and giving notice of order discontinuing the former action. The rule to discontinue, was on payment of costs, and an offer to pay them accompanied the notice of the order to discontinue. No costs have been taxed and none paid.
1Opinion of the CourtSutherland, J.
Rule 26 only allows a plaintiff to discontinue *49by common rule on payment of costs; but as the costs have to be ascertained by taxation or otherwise, the plaintiff can not pay them unless the defendant takes the requisite steps to render the amount certain. The English practice enables the plaintiff to procure taxation on his own motion, and exparte, if the defendant does not choose to appear — but we have no such practice. James vs. Delevan, 7 Wend. 511.
On payment of costs, the discontinuance takes effect from the entry of the rule. Under the English practice, if the costs are paid before…
2Cases cited1 opinion
- James v. DelevanNew York Supreme Court · 1832