The course pursued by the defendant’s attorney was correct. The rule permitting either party to give notice of the argument of a case, presupposes that the case is settled; so that there can be no controversy on that point, when a motion is made to bring on the' argument. Where a verdict is taken subject to the opinion of the, court, no order for a stay of proceedings is necessary; and the defendant must have leave from the court to proceed. To allow the defendant to notice the case for argument would be a very inconvenient practice. The court would, then, be obliged to hear the plaintiff’s excuse for not having made up bis case in due season; and if there were any disagreement between the parties, as to facts, affidavits wo.uld be necessary : Thus would be' drawn before the court, on days assigned to hear enumerated motions, matters intended to be confined to the days fixed for the hearing of nonenumefated motions. No sufficient excuse having been shown, on the part of the plaintiff, for not having made the case, the motion must be granted.
Motion granted.(a)
Vide Beardsley's executors v. Root, 11 Johns. Rep. 406.