The Court having examined the deposition, and finding that the subject matter of it applied in rebuttal of the defendant’s evidence, and was not necessary primarily, but only collaterally to support *428the plaintiff’s declaration, .ruled that the cause should be continued, but observed, that although the defect the caption was not owing to the laches, but to the misfortune of the plaintiff, it was not just that he should saddle his misfortune upon the defendant. They should therefore make the rule conditional that the plaintiff be allowed a continuance upon his paying to the defendants his taxable costs for this present term.
Darius Chipman and —— for plaintiff. Daniel Chipman and Nathan B. Graham, for defendant.Cause continued.