
    HEARD APRIL TERM, 1873.
    Detheridge vs. Earle.
    A defendant cannot avail himself of plaintiff's failure to proceed to trial on the call of the case and demand a non-suit unless he himself has given notice of trial as required by Section 277 of the Code of Procedure.
    Before ORR, J., at Greenville, September Term, 1872.
    The case on the first appeal is reported in 3 S. C., 396, and the whole case as now made is stated in the judgment of the Court.
    
      Stohes, for appellant.
    
      Earle & Blythe, contra.
    June 6, 1873.
   The opinion of the Court -was delivered by

Wright, A. J.

This case was heard by this Court at the April Term, 1872, and sent to the Circuit Court for a new trial.

On the call of the docket of that Court, the plaintiff being called and not answering, the following order in the cause was made by the presiding Judge : “ The plaintiff and plaintiff’s counsel having been called on this the last day of the attendance of the jurors, and upon a peremptory call of the docket, on motion of Earle and Blythe, the defendant’s attorneys, it is ordered that the plaintiff do pay the costs of this action, except the costs of appeal, on or by fifteenth day of October, prox., and in default thereof that he be non-suited.” The order presupposes that the plaintiff was in default. This is not shown by anything in the brief.

It does not appear that notice of trial had ever been given by the defendant as required by the 277th Section of the Code of Procedure, page 633 of new edition of General Statutes. He could take no advantage either of the unwillingness or the inability of the plaintiff to nroceed to trial, because he was not in a position to avail himself of the benefit to which he might have been entitled, if he had shown that he ever gave notice that he would require a trial.

The motion is granted, and the case remanded to the Circuit Court for the County of Greenville.

Moses, C. J., and Willard, A. J., concurred.  