Note. — Vide Park v Cochran & others, post 178.
Den on dem. of Tyce v. Ledford, 2 N.C. 35, 1 Hayw. 35 (1794)
March 1794
·
North Carolina Superior Court
2 N.C. 35, 1 Hayw. 35
Den on dem. of Tyce v. Ledford.
Where a cause had been depending three years in the County, and five years in the Superior Court, and the Plaintiff for the lass three years had been uniformly ready for trial, the Court ordered the Defendant to pay the costs of the Plaintiff’s witnesses during the term as the condition of another continuance.
Defendant made an affidavit in the usual form, that one Davis was a material witness for him ; that lie liad been summoned and did not attend, &c. But on the other side if being alledged, that this cause had been depending three years ip the County Court, where at length the Plaintiff obtained a verdict; that the Defendant then appealed to this Court, where the cause had been depending five years ; that the Plaintiff for the last three years had been uniformly pressing for u trial, and the Defendant delaying it under various pretences; and the act of 1779 being read and insisted on, which directs that where the Judge shall be of opinion that tiie [tarty praying a continuance, ought not to obtain the same without payment of costs, that the Judge may require him to pay the costs of that term before granting the continuance; and that though afterwards he should eventually prevail, that he should not be allowed such costs in the taxatiop of costs. The Court in this ease, Judge WniiiAMS being on the bench, made such order $ and the Defendant before the continuance granted, was required to pay, and did pay the costs of the attendance of all the Plaintiff’s witnesses during the term j and some of the bar requesting' to know if this was intended to be a general rule for the future, the. Judge, answered, no — only for cases circumstanced like the present.