Majority
p. 388Anonymous. ALBANY, Oct. 1826.
Headnote
The affidavit upon which to move for judgment asín case of non-suit, must shew there has been a circuit at which the hav^uiedhUi cause.The court will not take judicial notice wtlher\has been aucb a circuit.
W. Mulock moved for judgment as in case of nonsuit, for not proceeding to trial at the last circuit in the county f Ddaware.
J. Tillinghast
objected, that it did not appear by the a&davit on Which the motion was tounded, that there been any circuit in Delaware since the cause was put at issue.
Mulock
suggested, that the Court would take judicial notice that there had been such a circuit,
We have often held otherwise. Before you can move for judgment as in case of nonsuit, you must shew by your affidavit affirmatively, that there has been a circuit at which the plaintiff might have tried his cause. Till this is shown, it does not appear that he was in default.
Motion denied.