
    
      Jackson, on the demise of Rodman, v. Adam Brown.
    
    SPENCER moved for judgment, as in case of nonsuit, for not proceeding to trial. The notice was served on the first day of term, for argument on this. The affidavit accounted for its not being noticed for the first day, by stating, that it had been delivered, on the twenty-sixth of July, to a person who was then about leaving Hudson for Albany, but who had either lost it, or left it behind with some papers of his own.
    
      Van Vechten
    
    opposed the motion, by an affidavit of the indisposition óf both attorney and counsel in the cause, when too late to employ others.
    The cause was countermanded, but after the circuit 'began.
   Per Cur'mm.

The excuse is sufficient to prevent "granting the judgment applied for, but the plaintiff must pay the costs of nót proceeding to trial. It was '¿.'misfortune, it is true, that the parties should have been afflicted with sickness, but 'it is a misfortune that ought riot to fall on the defendant.  