
    Rogers against Tift.
    IN May term last, on the application of a judgment creditor, a feigned issue was directed in this cause, to try the validity of the judgment which had been entered up on a bond and warrant of attorney, in favor of the plaintiff against the defendant. The issue was made up pursuant to the rule entered for that purpose, and was noticed for trial at the last Rensselaer circuit; but though called in its order, it was not tried,
    Where * ^Sdbytb® court, to ¿cep-entered upon á Dona ana warrant of attorney, both parties are actors, and a judgment as in case of nonsuit will not be granted for not bringing the issue to trial.
    
      Walbndge, for the plaintiff,
    on the usual affidavit, now moved for judgment as in case of nonsuit, for not bringing the issue to trial at the circuit.
    f. Williams, contra,
    read an affidavit, stating that the cause had, also, been noticed for trial on the part of the defendant; and that it was not brought on to trial on account of the absence of material witnesses ; and he insisted *that both parties being actors, a judgment as in case of nonsuit ought not to be granted.
   Per Curiam.

This being a feigned issue directed by the court, to ascertain the truth of facts, for its own information, each party is to be deemed an actor; there can, therefore, be no nonsuit for not proceeding to trial.

Motion denied.  