jection is waived, the plaintiffs' affidavit is insufficient and the defendant must take his rule. Lewis, chief justice, absent. Jackson on the demise of Joseph Winter, against Martin M'Evoy, tenant in possession. WOODS applied to vacate the judgment entered against the casual ejector, and to admit Henry Masterton to be made defendant, on such terms as the court might be pleas ed to order. ALBANY, August 1803. Lufer V. Walton. In order to be defendant in It fwear he claims title and has a real and fub fence. From the affidavit of Masterton, it appeared, that the suit was instituted to recover possession of forty-five acres of land in the county of West Chester, to which he claimed title, and has a real and substantial defence to make : that, on the 26th day of July last, the deponent discovered in the ftantial debook of common rules of this court, that a rule for judgment against the casual ejector had been entered in the above cause, on the 12th day of May preceding; that the tenant in possession never informed the deponent of any declaration in the said suit having been served upon him, till a long time after the rule for judgment had been entered; that the deponent believed the knowledge of it was withheld from him, owing to a good understanding between the lessor of the plaintiff, and the tenant in possession, to prevent that defence being made, which the lessor of the plaintiff was, previous to the commencement of the above suit, told by the deponent he would make, and that on search he finds no record has been filed in the above cause. These facts and allegations he contended were tantamount to a positive assertion of title, that it was impossible without one to have a real and substantial defence. That nothing would be lost by the plaintiff as a trial might be had at the circuit in September. That the question would then fairly come up whether the deponent or Winter was really entitled. Radcliff justice. There does not appear to be tion between Masterton and the tenant. any rela Woods. Perhaps the affidavit does not go quite far enough in stating that expressly, but surely it may well be gathered from the whole. X ALBANY, Augult 1803. Winter V. M'Evoy. The fudden indifpofition of counfel and attorney, is an excufe for not proceeding to trial, but will not exempt from costs. Practice as to notice. Emmott contra. The deponent does not swear to any Jackson, on the demise of Rodman, against SPENCER moved for judgment, as in case of nonsuit, for not proceeding to trial. The notice was served on the first day of term, for argument on this. The affidavit accounted for its not being noticed for the first day, by stating that it had been delivered, on the twenty-sixth of July, to a person who was then about leaving Hudson for Albany, but who had either lost it, or left it behind with some papers of his own. Van Vecten opposed the motion, by an affidavit of the indisposition of both attorney and counsel in the cause, when too late to employ others. 38 The cause was countermanded, but, after the circuit, began. Per curiam. The excuse is sufficient to prevent granting the judgment applied for, but the plaintiff must pay the costs of not proceeding to trial. It was a misfortune, it is true, that the parties should have been afflicted with sickness, but it is a misfortune that ought not to fall on the defendant. Lewis, chief justice, absent.. Alexander against Esten, Administrator. to the objects specified in his notice, and the present being to set aside an execution, they would not allow it to be extended to the judgment. Lewis, chief justice, absent. Jackson, on the demise of Elkanah Watson, against John Marsh. W. WOODS moved, on the common affidavit, for judgment as in case of nonsuit for not proceeding to trial. Emmott resisted it by a counter affidavit, setting forth that the cause was duly noticed for Cayuga county, but, nine days before the trial, the defendant served a notice to produce papers which were in Albany. Emmott stated some circumstances tending to shew tricking practice, but nothing of that sort appeared by the affidavit. Per curiam. What is the distance from the county court in Cayuga, to Albany? Emmott. One hundred and eighty miles. Per curiam. The plaintiff must stipulate and pay costs. There is no proof of want of time. Lewis, chief justice, absent. `. Samuel B. Webb against Thomas Wilkie. THIS was an action on a sealed note, dated on the thirtieth of the month. The declaration stated the date to be the thirteenth. Emmot on the first day of term had obtained, a rule to amend the declaration by striking out the word "thirteenth" and inserting the word "thirtieth." No person appearing to oppose, the motion was granted of course and without imposing terms. Van Vecten now applied to vacate that rule, and that it. be ordered that the amendment be on the usual terms. This he said was necessary, because the plea of non est factum, which was then proper, might now be highly the reverse. The court was always disposed to set things right, if it lay in their power. They never could mean that the plaintiff, who had been guilty of a mistake in his declaration, should have liberty to amend that, and the defendant be held to a plea that might be inapplicable. Besides, there was ample time ALBANY, August 1803. Alexander V. Eften. Nine days notice is enough in Cayuga to produce papers in Albany, 180 miles diftant. Whenever a mends his deplaintiff aclaration, the defendant has an election to plead de novo. Auguit 1803. ALBANY, to give a plea before the next circuit, and surely the court will not shut out the defendant from pleading de novo, when his first plea was the result of the plaintiff's mistate Webb Y. Wilkie. All regulari ties are waived by a defendant ment for non suit nifi, the defendant fhould make a ment. Per curiam. Let the former rule be vacated, and the plaintiff amend on the usual terms. William Gilliland against Joseph Morrell. THE affidavit that was read stated, that in October, 1802, a motion was made on the part of the defendant for judgif he appear on trial. On judgment, as in a case of nonsuit; which, no one appearing to oppose, was granted as of course. The judgment, thus taken, was, in the same term, set aside by the plaintiff, on demand of his the usual terms of stipulating to try the next circuit, and paying the costs of not proceeding to trial. The stipulaand if not paid tion was entered into, the costs taxed, and demanded, but not paid, and now continued unsatisfied; that therefore, and as the defendant's only witness could not be found, he did not attend by himself or attorney at the last circuit in cofts with a copy of his rule annexed; may enter his judgment; if he do not fo, the plaintiff will be regular in noticing for April. trial. On these facts duly sworn to, and on an affidavit of the defendant that he had a good and substantial defence, as informed by his counsel, which he verily believed to be true; that on the merits, the plaintiff could not recover, and that a material witness was wanting, without whose testimony the defendant could not proceed to trial, but which he could procure by the next circuit, Van Vecten moved to set aside the verdict, and grant a new trial. Woodworth contra, produced a certificate from the clerk of the circuit court, that the trial of the above cause was had on the eighth day of April last, when Mr. Van Vecten appeared for Mr. Fisk, attorney for the defendant. On this he contended every irregularity was waived, and the verdict must stand, otherwise the chance of a verdict might be taken at any time after a little advantage obtained, and in case of a want of success, a motion to set it aside resorted to. Per curiam. This is an application to set aside a verdict. There are many facts stated. With respect to the entry of the rule for setting aside the judgment, as in case of nonsuit, there may be some doubt: The clerk finds no rule entered, but as there was a stipulation filed, the court take it for granted that it was on the usual terms. It is necessary, however, that in all cases of stipulation, there should be a demand of costs; this demand should be accompanied with a copy of the rule, and if the costs be not paid in twenty days after, then the party may enter up judgment of nonsuit, and take the effect of his application. The defendant swears that he did present a bill of costs, but does not say it was with a copy of the rule annexed; this, too, was on the agent, and not on the party, or his attorney. The defendant, therefore, has not been correct in his proceedings, and if the demand was not regular, the plaintiff was regular in noticing his cause for last April, and bringing it on to trial. But, admitting that in so doing he had been guilty of an irregularity, the defendant's appearing on the trial is a waiver of all advantage to which he might otherwise have been entitled. It was decided last term, in the case of Brain v. Rodelicks and Shivers, that if a party appear, he waives all irregularity. But it has been shewn there was not any; and if there was, the conduct of the defendant has placed the case in the same situation as if there was not. The plaintiff, therefore, is regular. Against this is read an affidavit of merits: on such an affidavit the court will not set aside a regular verdict. There is no irregularity; the defendant appeared, and has shewn no excuse why he did not defend; for if his witness could not have been obtained, the court, on the common affidavit, would have put off the trial. The defendant must take nothing by his motion. Lewis, chief justice, absent. Salmon Cogswell against Evert Vanderbergh. WOODWORTH, on the part of the defendant, moved to set aside the default, and all subsequent proceedings on two affidavits, made by the defendant and another person, stat ing that a capias ad respondendum in this suit, was duly issued and served in the month of November last; that in February following, the defendant called on the plaintiff, and ALBANY, Gilliland V. Morrell. • Ante 73. When proceedings have been regular, a mere affidavit of me ficient ground to fet them a fide. In fuch a cafe, if there has been a mif take on whick |