Majority
p. 10*Stephen Boyle agt. Patrick Boyle. December Term, 1845.
Headnote
It is not necessary to be stated, in an affidavit on a motion, the name of the judge of the circnit, at which a canse is referred.The new rule 44, after it took effect on the 1st of August last, must govern in the matter of practice, on motion for judgment as in case of non-suit, for not noticing cause for hearing, although the cause was referred previous to the 1st of August last. After the new rules took effect, there was no other for the court.
Motion, by defendant for judgment as in case of nonsuit. This cause was referred at a circuit in May last, to a sole referee, on motion of plaintiff. In September last, the plaintiff not having noticed it for hearing, the defendant’s attorney served plaintiff’s attorney with a notice in writing, that plaintiff notice the cause for a hearing in forty days, or that defendant would move for judgment as in case of nonsuit, according to the 44th (new) rule.
Gi. W. CuMMiNGr, defendant's counsel and attorney.
S. W. Jackson, plaintiff's counsel and attorney.
Plaintiff’s counsel objected, 1st, that the affidavit did not show it was referred, as it did not name the circuit judge, by whom it was referred. 2d, that the new rules did not take effect until the first day of August last, and consequently could have no application1 to causes referred, before the rule (44) went into operation.
Held, the reference regular; and that the new rules must now govern, for as soon as they went into effect, there were no other rules for the court.
Motion granted with costs.