Jackson, ex dem. Vroman, against Vroman

Jackson, ex dem. Vroman, against Vroman. Notice of judgment as^n case of non-given, till af-ir which^tbe plaintiff is Ral”1 lassedl though he entirely omit, to notice his papse. C. Y. Lansing, for the defendant, moved for judgment as case nonsuit, for not going to trial at the last Scho-harie circuit, pursuant to stipulation. He read an affidavit, the jurat of which was dated the Kith of October, sta-^at no notice of trial was, on that day, at the time of making the affidavit, received for the circuit, which was to holden on the 23d of October. And he said the plaintiff was in default. He had let the time pass for noticing. . It was impossible for him to try ; and> should be considered jn £t10 same Jiglit as if a circuit had passed, and the cause in fact not tried, through the plaintiff’s fault. I. Seelye, contra, said the application was premature. The cause might yet have been tried by arrangement between the parties; or the circuit might have fallen through. The plaintiff is not completely in default till his cause has been, or might be, called on the calendar. [MAJORITY] And of this opinion was the Court. Motion denied .