The opinion
Per Curiam.
The only question here is, who shall pay the expense. The plaintiff must certainly bear the charges of his own countermand; that and the notice are equally his acts; the expenses therefore incurred after notice, always fall to him, when he countermands. The judgment of nonsuit must, therefore, be refused, but the plaintiff to pay the defendant the costs of subpoenaing his witnesses prior to the countermand. [1]
On payment of costs up to the countermand,
Motion denied.
Radcliff and Livingston, Justices, absent.
See 2 Rev. Stat. 618, sec. 36; Keys v. Beardsley, 18 J. R. 135; 2 Wend. 241 ; 1 Id. 97; Jackson v. Brown, 1 Cai. R. 484 .