James v. Delevan

By the Court, Savage, Ch. J. The proceedings of the defendant have been regular. The plaintiff cannot discontinue without payment of costs. This is conceded ; but how are the costs to be liquidated and paid ? The plaintiff contends that the defendant must make up a record of discontinuance, and tax his costs, and collect them as he would upon a judgment of non-pros or non-suit. On this subject I have not found any case in our own court. We have said that the discontinuance is not complete until the costs are paid, and that the rule without payment of costs, is a nullity. 1 Wendell, 13. Perhaps the latter expression is not strictly correct, but certainly the rule is ineffectual as a discontinuance until payment of the costs. The English practice, according to Arch-bold, is to enter the rule to discontinue, where the plaintiff is entitled to do so, without special leave of the court.; it is there called a side-bar rule : “ Take it,” says Archbold, “ to the master, and get an appointment to tax the costs, serye a copy of the rule and appointment on the defendant’s attorney, attend at the time appointed, and the master will tax the costs.” These costs must be paid forthwith; for until paid, the action is not discontinued. According to Sheridan, if the defendant’s attorney does not attend on the third appointment by the master, he will tax the costs ex parte. We have no such officer, nor such practice; and no question on that point can arise in this case. The defendant’s attorney taxed his costs and de [513] manded payment; 'had they been paid, the plaintiff’s discontinuance would have been complete; without payment, the defendant was at liberty to proceed and give the notice he did. Sheridan’s Pr. 535. 2 Archb. Pr. 207,8,9. 1 Paine & Duer, 641. 4 Maulé & Sel. 153, 4.