was of opinion, that the plaintiff could 110I pocket his distringas without the leave of the court, and that previous to the continuance of the suit by the plaintiff, aftei his giving notice of trial, the defendants might insist on his paying the costs of the term.

I do not think, that the court will compel the *171plaintiff to file his distringas against his consent; (See 3 Mod. 245, 246,) and it has been ruled at Nisi Prius at Cailisle, in Seely’s lessee v. Gregory, that even after a rule.for trial by proviso obtained, where the defendant neglected to issue his distringas by proviso, and the plaintiff took out his distringas, that the plaintiff was not obliged to file his distringas. [May Assizes 1787.] The only question seems to be, whether the costs should be paid previous to the cause going off. As to the rule in such case, that the plaintiff should pay the costs of the term, it appears to be a matter of course;-it may be enforced by attachment, and the court on application of the defendants would probably stop further proceedings, until the rule was complied with. But I have never known it to be the practice, to require the payment of the costs in the first instance as a term on the plaintiff, before a proviso rule taken. Until such rule had, or a rule for trial or non pros, the defendants by the policy of the law have not the cause in their possession.

The defendants’ counsel then moved, that the action should not be permitted to go off, unless the plaintiff would agree to the taking of the depositions of certain' witnesses then attending, and that the same should be read in evidence at the trial at all events. * But the court declared, that r-*-, the defendants not having the cause in their power, L they could not impose terms on the plaintiff; yet they recommended to the plaintiff’s counsel to agree to a reasonable and equitable rule, as to the taking of the depositions required, which was afterwards agreed to by mutual consent, the depositions so taken to be read in evidence on the common terms.