¶1According to the decisions in Easton v. Coe, (2 Johns. Rep. 383.) Powers v. Lockwood, (9 Johns. Rep. 133.) and Hemstract v. Youngs, (9 Johns. Rep. 364.) it appears that upon giving security, and showing due diligence, and special^ canse, a defendant may be entitled to a second adjournment. The justice in this case denied the adjournment, merely on the ground that the defendant refused to pay costs.
¶2Whether a justice’s court has a right, in any case, to exact costs, upon granting a favour to a party, it is not now necessary to decide : but under the circumstances of this case, the justice had no right to annex such a condition, because the defendant, on good grounds, claimed it as a right.
¶3According to the cases of Van Doren v. Walker, (2 Caines' Rep. 373.) and Fink v. Hall, (5 Johns. Rep. 437.) there is a fatal error, in that it does not appear, by the return, that a constable was sworn to attend the jury.
¶4Further, it does not appear upon the merits, that the plaintiff below had a legal ground of action. The judgment ought to be reversed.
¶5Judgment reversed.