
    Seymour against Deyo, Sheriff of Ulster.
    The court will not hear a motion to set aside a nonsuit at the trial, the plaintiff having since died and the only effect obviously being merely to unsettle the question oi costs.
    In debt for an escape, the plaintiff was nonsuited at the circuit, (March, 1824) and a case was made with a view to set the nonsuit aside, which was now on the calendar. After May term last, the plaintiff died ; and
    
      C. H. Ruggles, now moved for a rule that the cause should be stricken off, and that the defendant have judgment for costs.
    
      J. Sudam, contra.
   Curia.

We cannot hear the question upon the nonsuit argued, merely to unsettle the question as to costs. Tips would be its only effect. Granting a new trial rests in the sound discretion of the court; and we have refused to do this, where it was plain that the only effect would he a recovery of nominal damages. The present case is analogous in principle ; and the motion must be granted.

Rule accordingly. 
      
       Vid. Brantingham v. Fay, (1 John. Cas. 255.)
     