Wright v. Doolittle

if a plaintiff woulá stop a suit by notice that he should not prosecuto the same, given after service of his writ, and before Court, he must give that notice by a writing, that will render the defendant safe without attending Court.

The complainant, in this case, came before the County Court, in Windham County, at the September Term of 1832, with a complaint, setting forth, that the said Oliver Doolittle 2d did, on the 30th day of August, A. D. 1832, pray out a writ of ejectment against the said Wright, and cause the same to be served upon the said Wright on the day and year aforesaid, by one Elijah Stebbins, Constable of the town of Vernon, in said County, — wherein the said Wright was directed to be had before the said County Court, at their said September Term, to answer to the said suit; and, upon the failure of the said Doolittle to enter his said suit, the said Wright, at the said Term of the County Court, entered a complaint for his costs in attending said Court upon said suit. To this complaint it was replied by the said Doolittle in objection, that the said Doolit-tie, by a verbal message, delivered to the said Wright a few dsys before the Court, by the same officer who served the writ, informing the said Wright, that he should not" prosecute his said suit, commenced by his said. writ. The Court considered this fact as proved; but considered it no sufficient objection against allowance of costs to the complainant j which were allowed accordingly. To which decision, the said Doolittle excepted; and moved, that the same be passed to the Supreme Court. It accordingly comes here for consideration. Argument for the oomplainant. — The objection to the allowance of costs in this case, is not sufficient. Because the notice shown to have been given by the said Doolittle to the said Wright, that the suit abovementioned would not be prosecuted, being verbal merely, was no security to the complainant. In case of the death of the person, by whom the message was sent, there would have been no proof of such notice existing. In case, too, of the death of the complainant, nothing would have been left by him to secure- his estate against; the consequences of the suit being prosecuted. The complainant ought, in justice, to have been furnished in writing with a proof of the notice, in order that he might keep by. him that which would secure him against any want of good faith in the prosecution of the suit, which had been commenced against him. The counsel for Doolittle concisely argued, that this notice, sent by the officer who served the writ, and sent within a day or two after service, comes within the same principle established in the case of Mead and