
    
      Brandt, on the demise of W. R. Van Courtland and P. Van Courtlandt, against M. and A. Buckhout.
    If there be a neglect in not proceeding to trial, defendant must avail himself of it the first opportunity; if he do not, it will be a waiver, and subject him to costs, if he afterwards move for judgment as in case of nonsuit
    The issue in this cause had been joined in January, 1801, and notice of trial given in the June following; it however did not come on, in consequence of the defendants applying for a commission to obtain testimony from Virginia. On the arrival of the commission in that state, it was found the witness had removed into Kentucky, whither he was followed, and his evidence, to the interrogatories, taken on a deposition, made before two justices of the peace. A copy of this, accompanied with an affidavit of the facts, was served on the plaintiff’s attorney in August, 1802, and communication at the same time made, that a regular, commission would be sued out and sent into Kentucky. On this the plaintiff did not notice for trial; for not proceeding, however, to which,
    
      Woods
    
    now moved for judgment as in case of nonsuit.
    
      Spencer
    
    opposed the application, as being too late, insisting it ought to have been made the very first term after the neglect, and asked for costs of resisting the application.
   Per Curiam.

The defendants have not accounted for their delay; if that be not done, and the application be not immediately after the loches, the default is waived, and' cannot now be taken advantage of.

Motioned denied, with costs.

Radcliff and Livingston, justices, absent. 
      
       S. P. Gillet ads. Wilde, Col. Cas. 64. S. C., 1 Johns. Cas. 30. See also Mumford v. Col Ins. Co., 2 Cai. R. 251; Chapman v. Van Alstyne, Wen. 517 ; Harrison v. Stevens, 7 Wen. 519; Anon., 9 Wen. 461
     