Wright v. Doolittle

The opinion of the Court was pronounced by Hutchinson, C. J. It would be unreasonable, that a plaintiff in any suit newly commenced, should have no way in his power to stop such suit, without paying the cost of Court. He may commence the suit in good faith, yet af-terwards discover some mistake, which must render thg suit abortive. Hence this Court decided in the case, reported from Washington County, Mead, complainant, vs. [392] Arms, that a notice in writing from. Arms to Mead, that he should not enter nor prosecute such suit, and this notice "given when- no taxable cost had accrued in favor of Mead, furnished a sufficient reason for refusing Mead the taxable cost of his coming, to Court with his complaint to obtain such cost. The Court considered that written notice was ample security against any prosecution of the suit by Arms. Hayes, for the.complainant. Fhdps, for the- complainee. We are now called upon to attach the same effect to a verbal notice. We think this would be unreasonable.— It would subject the defendant to the risk of the life of the person who receives and delivers the message : also to the rjsk of the recollection and veracity of such person. And, even if these objections were obviated, there- is one more risk, that of this person’s continuing to reside where his testimony could be obtained-. If he trusted to such verbal notice, and remained contented without attending Court, and the action should still be entered and defaulted, all possible relief would rest on so many and so uncertain contingencies, no man should be subjected to them against his consent. The reasons, given by this Court in the case of Mead and Arms, apply to no case, except where the -n’otice is.in, writing, and is of itself sufficient evidence of his authority-'to- remain quietly-at home, as he might if no-writ had been served upon him. We consider' this to be the only rule that would be just aid practicable. The judgement of the County Court is affirmed.