Parkins vs. Stephenson, 10 Wend. 620

By the Court, Savage, Ch. J. If a plaintiff neglects to bring his cause to trial, when he has an opportunity to do so, the defendant may ask for judgment as in case of nonsuit. The plaintiff however, is at liberty to stipulate.

On the part of the defendant, it was asked whether the court Would not refuse liberty to stipulate, the defendant having for several months laid in jail, in close custody, and being now a prisoner on the limits; it was urged that in analogy to other provisions of the statute in relation to imprisoned debtors, re-was discretionary with the court whether a further time for the trial of the cause should or should not be given, 2 R. S. 423, § 81, it was submitted whether judgment ought not at once to be given for the defendant.

But the suggestion did not prevail. quiring plaintiffs to proceed in the prosecution of their suits without delay, 2 R. S 350, § 23, and 36, 37, the court ought not to extend their customary indulgence to a plaintiff who kept his debtor in confinement and that as it A. S. Garr, for the defendant. J. Rhoades, for the plaintiff.