
    McGlade ads. Wheaton.
    a defendant is not trying a cause, unless the defendant has obtained discharge. The poverty of
    Motion for judgment as in case of nonsuit. The excuse offered by the plaintiff for not trying the cause is, that the defendant is insolvent,
   By the Court,

Savage, C. J.

The excuse is insufficient, and the motion must be granted, unless the plaintiff stipulates to try the cause at the next circuit, and pays costs of this motion. The poverty of the defendant will not relieve the plaintiff from stipulating, unless the defendant has asked for and obtained a discharge under the insolvent laios; in which case, the plaintiff is allowed to discontinue without costs, otherwise not.  