
    Anonymous.
    A defendant is entitled to an order for the payment of costs incurred by him intermediate the notice of trial and the countermand thereof, though it appear that the cause could not have been tried by reason of the state of business at the circuit, had no countermand been served.
    
      8: JET. Hammond, for the defendant,
    moved that the plaintiff pay the defendant’s costs incurred between the time of noticing this cause for trial and the countermand of the notice. (2 R. S. 618, § 36.)
    
      R. J. Hilton, for the plaintiff,
    read an affidavit showing that the cause would not have been tried if the notice had not been countermanded, as no issue of so late a date had been reached at the circuit. He said the countermand was a benefit instead of an injury to the defendant, and that no costs should be allowed.
   By the Court,

Bronson, J.

The defendant ought not to have costs in such a case, but they are plainly given by the statute.

Motion granted.  