
    
      Beriah Phelps v. Trisdale Eddy.
    
    WOODWORTH, on an affidavit stating that issue had been joined in this cause in November, 1801, and noticed for trial at the last circuit for the county of Columbia, but not brought on, moved for judgment as in case of nonsuit.
    
      Williams read a counter deposition acknowledging the notice, but adding that the attorney for the defendant did not attend ; that his counsel, however, was there, with whose consent, an agreement was made between the agent for the defendant and the plaintiff’s attorney, that the cause should not be brought on before the Friday in the second week of the circuit, on the Thursday next preceding which day, the court adjourned ; that it was impossible to bring on the trial during the circuit, because, in consequence of the agreement entered into, the plaintiff had sent his witness home, and they were not to return till the Friday appointed.
   Per Curiam.

Let the defendant take nothing by Ms motion, and pay the plaintiff his costs for opposing.  