The defendant stated that immediately after the decision was made, allowing the cause to go over until the second day of the circuit on payment of costs, his attorney made an affidavit of the attendance of his witnesses and presented it to plaintiff’s counsel who read it, and made no objection to it, and was then told by defendant’s attorney, if he would pay the amount of witnesses fees, |6-50, it would be satisfactory; plaintiff’s counsel said he would see plaintiff and get the money and pay them; defendant also stated that the witnesses’ fees had never been paid. Also that younger issues were tried in their regular order on the calendar. Plaintiff stated that there was no litigated cause tried at said circuit, except those having a preference on the calendar to this cause. And after the first day there was no opportunity to try this cause. On Thursday after the civil calendar had been disposed of, plaintiff’s attorney offered to pay defendant’s attorney the costs of the day on their being regularly taxed. Defendant’s attorney refused to receive them, and claimed the costs of the circuit.
Jewett, Justice.The costs of the circuit can not be allowed; it seems the cause was put over for one day on payment of costs, and after that, was not again reached; plaintiff was ready to try at any time after the first day, and offered to pay the costs of the day on their being regularly taxed. Plaintiff must pay the costs of the day, f 6’50, without any costs of this motion to either party.
Rule accordingly.