
    WILLIAM SHAW ET AL. ads. THE RARITAN AND DELAWARE BAY RAILROAD COMPANY.
    The plaintiff who fails to bring his cause to trial at any Circuit Court, after it is at issue, is liable to a judgment against bim, as in case of a non-suit; but unless the motion for such judgment is made at the term next after the first failure, there must be two days’ notice of the intention to make it.
    In matter of practice.
    P. L. Voorhees, for the defendants,
    moved a judgment as in ease of a non-suit, on the ground that the cause had not been tried at the last Circuit Court held in the county wherein the venue was laid. The cause had been at issue, and might have been tried at several circuits which had since been held, but no motion had been before made for a non-suit, nor had any notice been given to the plaintiff to go to trial, as prescribed by the twenty-first rule of the Supreme Court.
   By the Court.

The practice act of 1846, (Nix. Dig. 659, § 65,) enacts that every cause shall be tried at the next court after issue joined, or on failure thereof, judgment shall be awarded for the defendant, as in case of a non-suit. A rule of this court, subsequently adopted, required advantage of a failure to try the cause to be taken at the next term after such failure, or the right to do so should be considered to be waived, unless upon a rule nisi, giving the adverse party such short time to go to trial as the court should thereupon direct. This rule was afterwards altered, as it now stands in the twenty-first rule. So that if the motion for a non-suit was not made at the next term after the failure, the defendant should not have such judgment, unless he should have given forty days'" notice to the adverse party to go to trial.

Since this rule was framed, the act approved April 6th, 1865, (Sess. Acts, p. 832,) has enacted that if the plaintiff shall neglect to bring his cause to trial at any term of the Circuit Court, after the cause is at issue, and after sufficient time has elapsed to enable him to give the requisite notice of trial, judgments shall be awarded for the defendant, as in case of a non-suit, with costs, unless the court, upon just and reasonable terms, allow further time. This act must be held to have superseded the twenty-first rule, so that now the plaintiff must notice his cause for trial at every circuit after it has been a sufficient time at issue, or subject himself to the risk of being non-suited. But unless the motion for such judgment is made at the next term after the first failure, there must be two days’ notice to entitle the defendant to be heard. Until such a notice is given, the motion must be denied.

At a subsequent day in the term, a notice of the motion having been given, and no just cause for allowing further time being shown, judgment for the defendant, as in case of a non-suit, was ordered, with costs.  