Majority
p. 344Cotes, Titford and Brookes v. James Thompson. moved again for judgment as in case of non-suit.
Headnote
THE court had the last term denied a motion for judgment, as in case of nonsuit for not proceeding to trial, on the plaintiff’s stipulating to try at the last sittings for the city and county of New- York, nine months having elapsed since issuing the commission in the cause. The plaintiffs not having proceeded agreeably to that stipulation,Boyd
p. 345read an affidavit, stating the com- ° mission to have been mislaid by the defendant’s commissioner; it is now found, and is shortly expected to be returned.
Munro. contra,
The motion must be refused; but the plaintiff must pay costs and stipulate anew.