Bander against Covill

. Bander agavnst Cotill,. In determining the sufficiency of a notice of notice*'fof'the day before the pointed 18 afó commence, the court will not only look to the y™ 0bfuíhother circumstances, the opposite fact^mfeied by the mistake. The plaintiff’s attorneys noticed this cause for trial and . . _ . r% *<-*<-*» inquest, by a. notice,, dated. Nov. 3, 1824, that it would be at t^ie next Circuit Court to he held in and for the county of Rensselaer, at, dec. on the 3d Monday of November instant, whereas the Circuit was appointed for, and- commenced on the next day, the 3d Tuesday of that J month j but it appeared, hy various conversations between the counsel of the parties, which took place in the course 0f the Circuit, that the defendant’s counsel, or attorney, was not misled by the mistake. The plaintiff’s counsel to°k an inquest by default, which J Payne, for the defendant, moved to set aside, for the defect in the notice. A. Conkling, contra, cited Quick v. Merrill, (3 Caines’ Rep. 133,) and. Wolfe v. Horton, (id. 86.) [MAJORITY — Curia.] Curia. In determining the sufficiency of this and the like notices, it is a general rule that we will inquire whether the attorney or party was misled by the defect. Now though these Circuits are not appointed by law, yet notice is required to be published, and the attorneys, especially where, as here, they live directly in the neighborhood of the Circuit, must look to it. But we will also examine the question whether the party, his attorney, or counsel, have, in fact, been misled ; and it appears clearly, in this case, that they have not. The motion must be denied. Motion denied.