
    MAY 15, 1802.
    John McDowall v. John Macker.
    
      Upon a writ of error to reverse a decree of the Bardstown District Court.
    
    A party appearing and defending a motion can not afterward complain of a want of notice thereof.
   The first error assigned is, that notice was given that a motion to ■dissolve the injunction would be made on the fourth day of the term, and the motion was not made until the sixth. When notice is given that a motion will be made on a particular day, unless it bo prevented by unavoidable accidents, the motion should be made on that day, and either decided on or continued to some subsequent day, and this, it is believed, is the general practice; and it seems to this court; if it does not appear of record, that a case was so conducted, or in some other way equally rational and fair, the proceedings thereon ought to be adjudged erroneous. In this case, though the motion was not made on the day to which the notice was given, yet on the day it was made it appears that the complainant was fully heard by his counsel; and therefore it can not be presumed that he was surprised, or had just cause of objection, as to the time the motion was made; more especially as he did not then tender a bill of exceptions to show it. The other errors assigned seem to be still more immaterial.

Therefore, it is considered by the court, that the decree aforesaid be affirmed; that the defendant may proceed to have the benefit thereof in the court below, and recover of the plaintiff ten per centum damages on the amount thereof, together with his costs in this behalf expended, which is ordered to be certified to the said court.  