
    
      James Brandt, on the demise of William Rickets Van Courtlandt, and Philip Van Courtlandt, v. Matthias Buckhout and Abraham Buckhout.
    
    THE issue in this cause had been joined in January % 1802, and notice of trial given in the June fob ¡owing i it, however, did not come on, in consequence • of the defendant’s applying for a commission to obtain testimony from Virginia. On the arrival of the commission in that state, it was found, the witness had removed into Kentucky, whither he was followed, and his evidence to the interrogatories taken, on a deposition made before two justices of the peace. A copy of this, accompanied with an affidavit of the facts, was served on the plaintiff’s attorney in August, 1802, and communication at the same time made, that a regular commission would be sued out and sent into Kentucky. On this the plaintiff did not notice for trial; however, for not proceeding to which,
    
      Woods
    
    now moved for judgment as in case of non-suit.
    
      Spencer
    
    opposed the application as being too late., insisting it ought to have been made the very first term after the neglect.
   Per Curiam.

The defendant has not accounted for his delay; if that be not done, and the application be not immediately after the loches, the default is waived, and cannot now be taken advantage of.

Woods hoped the court would order the plaintiff to stipulate.

Per Curiam.

He is not bound to stipulate.

Spencer prayed costs for resisting the application.

Per Curiam.

Let the plaintiff take them.

Ordered, That the defendant take nothing by his motion, and pay the plaintiff his costs of opposing.  