Where plaintiff has issued his distringas, and given notice of trial, the defendant is not bound under his distringas by proviso, to give notice of trial.
The plaintiff had issued a distringas and given notice of trial; the defendant had issued a distringas by proviso, but gave no notice; and the plaintiff objected to the defendant’s bringing on the cause.
Messrs. Montgomery and Hopkins, pro quer.
Messrs. Kittera and C. Smith, pro def.
This point has been frequently determined under the 47th rule for regulating the practice of this court.
The rule was made to prevent surprize; but surprize cannot be pretended by the party who has himself given written notice of trial.
*3031 * plaintiff then made affidavit of the absence of J a material witness duly subpoenaed, whereupon the cause was postponed.
1 Yeates 302
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