
    Leonard against Slaughter.
    ALBANY,
    August, 1813.
    When the plaintiff in 4 cause discontinues thesuit, without leave of the court, cannot obtain motion^’ but ™u°j¡^ the plaintiff, discontinué [¡“y® '
    D. RUGGLES, for the defendant, moved for a rule that the plaintiff pay the costs in this suit, he having discontinued, and given notice thereof to the defendant.
    / Sudam, contra, cited Marsten v. Lawrence, (Col. Cas. 97.) that a discontinuance of a suit may be entered at any time before plea pleaded in a second suit, without leave of the court, or payment of COStS.
    But, he said, the defendant could not get his costs in this way. The discontinuance was a nullity, unless the costs were paid, and the defendant must proceed to non pros the plaintiff, in order to get judgment for his costs.
   Per Curiam.

The defendant cannot recover his costs on motion, but must proceed to obtain judgment of nonpros against the plaintiff

Motion denied.  