
    James Freeland, et al., vs. Thomas J. Marvin, Samuel C. West and John Ford.
    A notice must be served with a special plea in bankruptcy, requiring plaintiff to reply, <§-c., otherwise on a motion for judgment as in case of non-suit, the cause will be considered not at issue, through the neglect of defendant.
    
      Motion by defendants for judgment, as in case of non-suit.—On the part of the defendants, it is shown, that each defendant appears by a different attorney, and each join in this motion. Issue was joined as to defendants Marvin and Ford, on the 24th June, 1843, and as to West on the 20th June, 1843. The venue is laid in the city and county of New York. A circuit court was held in and for the city and county of New York on the fourth Monday of December last past. The plaintiffs did not notice the cause for trial at said circuit; and issues of a later date than the above were tried at said circuit. On the part of the plaintiffs it appears that this suit was brought to recover the amount of a check given by one of the defendants, in their copartnership name of Marvin, West & Co. On the 22d June, 1843, plaintiffs’ attorney received a plea of the general issue from defendant West separately, by Bockes & Nash, his attorneys. On the 26th June, 1843, he received a plea of the "general issue from the defendant Marvin separately, by W. A. Beach, his attorn ney. And also, on the same day a plea of the general issue and a special plea of a bankrupt’s discharge, concluding with a verification, from the defendant John Ford separately, by J. C. Hulbert, his attorney. There wras no notice accompanying the said special plea of bankruptcy requiring plaintiffs’ attorney to reply to same. Since the receipt of the pleas no proceedings have been had in the cause until this notice of motion. The delay on the part of plaintiffs is sought to be excused and explained by some negociations for the settlement of the cause; the result of which was not known until this notice of motion was given. Plaintiff submits, that this cause is not at issue within the 27th Rule of this court, and not ready to be noticed for trial. And that the omission to serve plaintiffs’ attorney with notice to reply to said special plea, together with the negotiation for settlement has been the cause thereof.
    
      S. P. Nash, Defts Counsel. W. A. Beach, Atty for Marvin.
    
    Bocees & Nash, Attysfor West.
    
    Jno. C. Hulbert, Atty for Ford.
    
    P. Cagger, Plffs Counsel. Geo. Bowman, Plffs Atty.
    
   Beardsley, Justice

The cause is not at issue, through neglect of defendants in omitting to serve plaintiffs’ attorney with a notice to reply to the special plea in bankruptcy; that together with the negotiations which appears on the part of the plaintiffs to have been going on for a settlement, is fatal to defendants on this motion.

Decision—Motion denied with costs.  