
    Smith vs. Howard.
    A plaintiff obtaining an inquest at the circuit is not bound to waive it upon the application of the defendant, though he offer to pay costs, &c, but may put him to his motion.
    August 7.
    The question in this case was, whether a plaintiff who has obtained an inquest at the circuit is bound to waive it, on being offered the costs and presented with an excuse verified by affidavit; and if he refuses to do so, whether he is chargeable with costs of motion.
   By the Court,

Nelson, J.

A plaintiff who has regularly obtained an inquest is not bound to waive it on the application of the defendant, let the excuse be what it may; but may put the defendant to his motion, who, if relieved, instead of receiving, must pay costs.  