
    Daniel A. Baldwin agt. Russell F. Woolever.
    
      A written agreement or stipulation, signed by the attorneys for the respective parties, “that the trial of this'cause be put off until the next April circuit, to be held in and for Herkimer county, without prejudice to either partyheld, not to operate as a stipulation on the part of the plaintiff to bring the cause to trial at the April circmt. Plaintiff had a right to stipulate at the April circuit to bring the cause to trial at the next circuit, under the rule.
    
      June Term, 1846.
    Motion by defendant for judgment as in case of nonsuit.
    Defendant’s papers stated that issue was joined in this cause July 29, 1845. On the 21st of August, 1845, plaintiff’s attorneys noticed the cause for trial at the circuit held for Herkimer county (where the venue was laid), on the third Monday of September, 1845; which circuit was regularly held, and all the business on the calendar disposed of; that on the 13th day of September, and a few days previous to the circuit, the attorneys of the ^respective parties stipulated as follows: (title of the cause,) “ It is hereby stipulated by and between the attorneys for the respective parties in this suit, that the trial of this cause be put off until the next April circuit, to be held in and for Herkimer county, without prejudice to either party.” (Signed by the attorneys of the respective parties, and dated September 13, 1845.) The April circuit was held, and all the business on the calendar disposed of; this causé was not noticed for trial, nor tried at the April circuit pursuant to the stipulation. On the 10th day of April, the last day of the circuit, plaintiff’s attorneys served on defendant’s attorneys a stipulation to try at the next September circuit, and to pay all proper costs pursuant to the rules and practice of this court; which stipulation defendant’s attorneys declined to receive, and returned it to plaintiff’s attorneys.
    D. Burwell, defendants counsel.
    
    0apron & Lake, defendants attorneys.
    
    P. Oagger, plaintiff's counsel. .
    Benton & Barrett, plaintiff's attorneys.
    
   Defendant’s counsel insisted that the agreement made by the attorneys for the respective parties, on the 13th September, 1845, that the trial of the cause be put off until the next April circuit, operated as a stipulation to try at the April circuit.

Jewett, Justice.

Held that the agreement of the 13th September did not operate as a stipulation to try, it was nothing more in effect than an agreement to let the cause go over the circuit without prejudice to either party. The plaintiff’s attorneys tendered a stipulation, and offered to pay costs under the rule, which was declined by defendant’s attorneys. Motion denied with $7 costs.  