
    Anna McDonald agt. Chauncey Brace.
    Where defendant, by injunction from chancery, restrains plaintiff’s proceedings in the suit at law, except to proceed to judgment, and the plaihtiff does not notice the cause for trial at the next circuit after service of the injunction; the defendant can not obtain judgment as in case of nonsuit for not noticing for the circuit. After service of the injunction it is at plaintiff’s election to proceed to judgment or not.
    
      April Term, 1846.
    Motion by defendant for judgment as in case of nonsuit.
    This was an action of ejectment, for premises in Niagara county. Plaintiff resided in Jefferson county. The suit was commenced in October last, and issue joined the 5th January last. On the 19th January, plaintiff was served by defendant with an injunction and subpoena from the court of chancery, staying all the proceedings in this cause except to proceed to judgment, and in February afterwards was served with a bill in chancery, for relief, &c. A circuit was held in Niagara, commencing on the 10th of March, and plaintiff’s attorney *did not notice the cause for trial, alleging that, by the terms of the injunction served, it was optional with the plaintiff, whether to proceed to judgment or not. ’
    Defendant insisted that the plaintiff was bound to proceed to judgment, that the injunction did not stay him for that propose.
    A. Taber, defendants counsel.
    
    J. C. Morse, defendants attorney.
    
    J. A. Collier, plaintiff's counsel.
    
    N. B. Hawes, plaintiff's attorney.
    
   Beardsley, Justice.

Denied the motion with costs, on the ground that it was at plaintiff’s election to proceed to judgment or not, after the injunction was served.  