
    Stephen Crosby agt. Albert Taylor.
    Where a motion is made for judgment, aa in case of non-suit, and the plaintiff shows that no cause of as young an issue was tried at the circuit, the motion will be denied, costs to abide the event 1 (10 Wend. 592.)
    
      February Term, 1846.
    Motion by defendant for judgment, as in case of non-suit.
    The plaintiff noticed the cause for trial at November circuit, 1845, in Montgomery. On the 3d November, defendant’s attorney received from plaintiff’s attorney notice of countermand of his notice of trial. Defendant’s attorney refused to receive the notice of countermand, unless his costs, which he had incurred under the notice of trial, were paid. Plaintiff showed that at the same time notice of countermand was served on defendant’s attorney, he also served a stipulation to try the cause at the next May circuit in Montgomery. Plaintiff also showed, that no issue of a later date than the issue in this cause was tried at the November circuit, and that if this cause had been put upon the calendar, it could not have been tried at the November circuit: it would not have been reached.
    B. H. Tyler, defendant’s attorney.
    
    P. Cagger, plaintiff’s counsel.
    
    J. Wendell, plaintiff’s attorney.
    
   Bronson, Chief Justice.

Denied the motion without prejudice, the costs to abide the event. This follows the case in 10 Wend. 592, as to -the costs; the attorney made the motion in good faith, no doubt.  