
    Silas H. Mills Assignee, &c., vs. Alpheus Chapman.
    Where the defendant’s order requiring plaintiff to file security for costs, or show cause, #c., and staying his proceedings, beyond the time for noticing the cause for trial; motion for judgment as in case of non-suit will be denied, with costs.
    
      Motion by defendant for judgment as in case of non-suit.—On the ground that the plaintiff did not notice the cause at the last January Essex circuit. It appears on the part of the plaintiff, that issue was joined in this cause, on the 20th December last. On the 30th December last, an order by a supreme court commissioner, was served on plaintiff’s attorney, requiring plaintiff to file security for costs in twenty days after service of same, or show cause at the next special term of this court why he had not done so, and that in the mean time all proceedings on the part of plaintiff be stayed. At the time this order was served, the cause was not noticed for trial; plaintiff appeared at the February special term, (at which he was required by said order,) to show cause; the defendant not appearing, plaintiff took a rule for costs against him. The- circuit was held 28th January last.
    0. Allen, Lefts Counsel. J. F. Havens, Lefts Atty.
    
    A. C. Hand, Plffs Counsel. Joña. N. Tarbell, Plffs Atty.
    
   Beardsley, Justice.

Held, that the order to stay proceedings, served on plaintiff’s attorney, prevented plaintiff from proceeding to trial, as he had elected to show cause. Motion denied with costs.  