
    Moses Whitney versus Libbeus Thayer.
    This action was entered at April term 1827 of the Court of Common Pleas, when the defendant was defaulted. At the next term the plaintiff moved that it should be brought forward as a continued action, he having since ascertained, that at the time of the service of the writ and of the sitting of the court in April, the defendant was out of the commonwealth. Williams J. of C. C. P., overruled the motion. Churchill now presented a report of these facts under the hand of the judge ; but the Court said they could not interfere, as the motion related to a matter within the discretion of the court below. (See Reynard v. Brecknell, 4 Pick 302.)
     