
    Fisher and others against Dale.
    Where a cause brolKhtefoUlSi pursuant to the 'jury1were dis* charged, be-could not agree on a verdict, allowed ^U<tfe cause to be again put on the calendar, for the purpose of being tried by another jury, but the plaintiff’s counsel refused to bring on the cause to trial again at that sittings; ífeld, the defendant is not entitled to judgment as in case of nonsuit, for not bringing on the cause to trial pursuant to notice.
    THIS cause was tried at the last sittings in New- York, before H r Justice Woodworth. The jury who were impanneled to try the cause, after being out several hours, returned into court, and informed the judge that they had not agreed on their verdict, and that there was no probability that they should ever agree upon it; and they were thereupon discharged by the judge. The counsel for the defendant then applied to the judge to have the cause reinstated on the calendar, in order that jt might be tried bv another jury ; and the judge decided, that 0 J J jo it might be put on the calendar for the purpose of being tried again. The plaintiffs’ counsel stated, that they should not, for reasons which they mentioned, try the cause during the sittings; and it was not tried. .
    
      Wells, for the defendant,
    now moved for judgment, as in *case of nonsuit, for not bringing the cause to trial at the last sittings, pursuant to notice.
    
      Í). />. Ogden, contra.
   Per Curiam.

Under the circumstances of the case, we do not see that the plaintiffs were bound to have the cause tried by another jury, at the same sittings, or that they can be considered as in default. The motion must be denied.

Motion denied.  