6 Cow. 388
Decided October 15, 1826
New York Supreme Court · decided 1826-10-15
W. Mulock moved for judgment as in case of nonsuit, for not proceeding to trial at the last circuit in the county f Ddaware. 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. suggested, that the Court would take judicial notice that there had been such a circuit,
Decided 1826-10-15
¶1We 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.
¶2Motion denied.