
    Beekman against Wright.
    NEW YORK,
    October, 1814.
    After issue joined, a cause in a justice’s court, was adjourned at the request of the deiendant for more than 30 days, upon giving security, Ac. At the day fixed by the adjournment, the parties appeared, and the defendant showed due diligence in subpoenaing his witnesses, and made oath that a material witness, who had been subpoenaed, did not attend, and prayed a secortd adjournment, which was refused by the justice, unless the defendant would pay the extra costs, which not being done, the cause was heard ex parte, and decided. It was held, that the defendant, having given security, and shown due diligence in procuring the attendance of his witnesses, Ac. was entitled to a second adjournment. Whether a justice has power, in any case, to exact costs, on granting a favour to a party in a cause p qmre.
    IN ERROR, on certiorari, from a justice’s court. Wright sued Beekman, by summons; and after joining issue, on the 30th of March, 1812, the trial was adjourned, on application of the defendant below, until the 2d of May, 1812, upon giving security, &.C.
    The parties appeared again on the 2d of May, and upon proving due diligence in subpoenaing his witnesses, and making oath that a material witness, who had been subpoenaed, did not attend, the defendant moved for a second adjournment. No objection was made to the affidavit, nor was any negligence imputed to the defendant; but the justice refused to grant the adjournment, unless the defendant would pay all the extra costs, which he refused to do, and left the court. The trial proceeded ex parte, and judgment was given for the plaintiff, for twenty-five dollars and the costs.
    The return also stated that “ the jury went out, and after-wards returned a verdict,” without showing that a constable was sworn to attend them.
   Per Curiam.

According to the decisions in Easton v. Coe, (2 Johns. Rep. 383.) Powers v. Lockwood, (9 Johns. Rep. 133.) and Hemstract v. Youngs, (9 Johns. Rep. 364.) it appears that upon giving security, and showing due diligence, and special^ canse, a defendant may be entitled to a second adjournment. The justice in this case denied the adjournment, merely on the ground that the defendant refused to pay costs.

Whether a justice’s court has a right, in any case, to exact costs, upon granting a favour to a party, it is not now necessary to decide : but under the circumstances of this case, the justice had no right to annex such a condition, because the defendant, on good grounds, claimed it as a right.

According to the cases of Van Doren v. Walker, (2 Caines' Rep. 373.) and Fink v. Hall, (5 Johns. Rep. 437.) there is a fatal error, in that it does not appear, by the return, that a constable was sworn to attend the jury.

Further, it does not appear upon the merits, that the plaintiff below had a legal ground of action. The judgment ought to be reversed.

Judgment reversed.  