
    
      John P. Ryers v. William Hillyer.
    
    SPENCER moved, on the common affidavit, for judgment as in case of nonsuit for not proceeding to trial.
    
      Hoffman resisted the application,
    because the notice was titled William Hillyer v. John P. Ryers instead of William Hillyer ads. John P. Ryers; this, he said, was fatal, there being no such suit in existence as the one in which the notice was given, but he added, he would not have urged it except from its being one of Mr. Golden s causes, whose state of health the , , , whole court knew.
    
      Spencer, contra,
    observed, that there could be no force in the objection, unless it appeared that the party had been misled ; The notice was for judgment as in case of nonsuit for not proceeding to trial, therefore it must have come from a defendant. In the next place, it was on an affidavit, a copy whereof was annexed, and that affidavit was rightly entituled. It is a mere question of who shall pay costs. There has been no countermand, and the defendant kept all the. circuit with his witnesses.
    
      Hoffman.
    
    As this is the first default, will the court
    oblige us to stipulate P
    
      
       On the same principle, where a notice of executing a writ of inquiry “ on Tuesday the 14th of January instant,” was given, the court of C. B. refused to set aside the execution of the writ because the 14th was on a Thursday, saying it was clear the defendant could not have 'been misled. Batten and Harrison, 3 Bos. & Pul. 1.
    
   Per Curiam.

Stipulate to try at the next circuit for the city and county of New- York, and pay the costs of the present application.  