By the Court. delivering the opinion.
The bill of exceptions says this: “ The plaintiff’s counsel then demurred to the sufficiency of the notice.” “After argument the Court sustained the demurrer, and ruled that the *335notice to sue was insufficient and directed the jury to find for the plaintiff.”
This, we suppose, means, that the Court, at the request of the plaintiff’s counsel, told the jury, that the notice was insufficient; for the notice, as well as all the other evidence, was before the jury. The evidence had been closed.
We think, that the notice was sufficient “ Loose no time,” is a command.
But still, we think, that a new trial ought not to be granted. The other evidence was sufficient to annul the effect of this —that is the effect of the notice. The other evidence showed, that the principal died within the term allowed to the holder to sue such principal in. 3 Kelly, 527.
There was no motion for a new trial, so the case does not fall within the new trial Act of 1854.
Judgment affirmed.