
    Smith against Shaw.
    Though the f^ney ten* the plaintiff’s athThas issued no subposnas, and that the defendant has no witnesses to subpoena, this does not imply that no costs have accrued on the part of the defendant in preparing a cause for trial; and under such circumstances, though a notice of trial, given by the plaintiff’s attorney, be countermanded by him, and he stipulate to try at the next circuit, and serve the stipulation before he receives the notice of a motion for judgment, as in case of non-suit, yet the defendant has a right to make the motion.
    The plaintiff’s attorney, on stipulating, should have offered to pay the costs accrued; for though the defendant have no witnesses, yet there may be the costs of a brief for trial and preparing papers for the motion.
    The plaintiff'had noticed this cause for trial, and six days before the Circuit, he countermanded the notice, and the defendant’s attorney then told him that no subpoenas had been issued, because his client told him he had no witnesses to subpoena. After the Circuit, and before notice of a motion for judgment, as in case of nonsuit, the plaintiff’s attorney tendered to the defendant’s a stipulation to try at the next Circuit, hut did not offer to pay any costs. And now, the defendant moved for judgment, as in case of nonsuit, which motion was opposed as irregular.
    
      Sherwood <§»■ Parker, for the plaintiff.
    
      Root if-- Hobbie, for the defendant.
   Curia.

No subpoenas issued and no witnesses to subpoena, do not necessarily imply that no costs had accrued. There might have been the costs of a brief for the trial and of preparing papers for this very motion, which should have been tendered.

Sutherland, J. dissented. He thought, that under the circumstances, the party applying should have shewn affirmatively, that costs had, in fact, accrued.

Motion granted.  