
    Peter Brooks against Abijah Hunt.
    The defendant is entitled to move for judgment as in case of nonsuit whenever there is, after issue joined, time to notice for the next circuit, but if he has obtained time to plead, and from the nature of his plea, distant witnesses may be needed, on which point it is necessary that the plaintiff’s attorney consult with his client, who live, at some distance, though a stipulation may be excused, costs of applying must be paid.
    ISSUE had been joined on the first of March last, but the cause, the venue of which was laid in the county of Albany, had not been brought on at the last April circuit.
    
      Sanford, On these facts, moved for judgment as in case of-non-suit#
    
      Paris, contra,
    shewed, that the defendant had delayed the cause by obtaining time to plead till the first day of March, that from the matter of the plea then delivered, there was reason to
    , , believe it would be necessary to sufthana witnesses irom New-York, and that from the short interval between the receipt of the plea and the circuit, .he had no opportunity of consulting with (_jle plaintiff who resided in the most westerly part of Montgom- . , , , . , ery. from these circumstances he argued that the motion ought tobe denied without cither costs, or stipulation.
    
      Sanford, in reply.
    The words of the statute are that where iSSUe is Joined and the plaintiff “ neglect to bring such issue to be J , , . , , j “ tried according to the course and practice of the court, the de-fencjant shall be entitled to judgment as in case of nonsuit. From .... the 1st day of Ma, ch, to the circuit m Ap.nl was time enough to notice,
    
      
      
         1 Rev. Laws 353. See. 12.
      
    
   Per curiam.

The defendant had a right to move, and therefore, t^10US^ we ^eny bis motion, it must be on payment of costs ; but, from the circumstances of the case, the plaintiff is excuse» from stipulating.

NEW-YORK,

May, 1805.

Thompson, J.

I do not think this according to practice. The cause was long enough at issue to allow of a notice, and he ought therefore to stipulate.

*⅞* It was said by the bench, that in all cases the period within which costs are to be paid, is twenty days.  