#### Bissell *against*Lee. The Same *against*the Same.

where a cause thécfoúrtfpíí 10 *hoiiyP,ai ne? gleets to bring the cause to a hearing before the defendant) has1" intendTM to’amic^ttit ahehe““ns® f°£ Snue w¡tWn°a days, the defendant shall have leave to same for hear-case’ofThe *n&*gleet or default of the plaintiff, the referees are to proceed to a hearing oii the defendant’s notice; and in case the plaintiff does not appear at the day appointed, the referees mast report that noIhhicr 5s due to the plaintiff, unless the defendant claims a balance due to him, and if the pleadings willadmit of it, he may exhibit his proofs, and the referees may report such a balance ars they shall duo to him from the plaintiff.

THE above causes were put at issue on the 12 th *Novemher,*1816. On affidavit, that the trial of them would require the examination of long accounts, and on the motion of the defendant for that purpose, they were ordered, in *May*term, to be referred to three referees.

*Griffin,*for the defendant, now moved, that the plaintiff proceed to a hearing before the referees, within twenty days, or that a judgment, as in case of nonsuit, be entered, He read an affidavit, stating, that since the rule for a reference was entered in the causes, the plaintiff had not given any notice of bringing the causes to a hearing before the' referees, nor taken any step for that purpose. That the , *.*„ deteridant had a great number of witnesses for him, some of whom were infirm, others poor,, and some were about to remove out of the county of *Oneida,*where the venue was laid, and without whose testimony he could not safely proceed to a hearing before the referees.

*Talcot,*for the plaintiff

*Per Curiam.*

Let the following rule be entered:

<c It appearing to the Court that these causes were refer-11 ° *46red to three referees, pursuant to the statute, upon a special appücati0n to the Court, in *May*term, 1817, and that the plaintiffhath ever since neglected to notice the same for a hearing, or in any manner to proceed therein ; on motion, &c., on behalf of the defendant; It is *ordered,*that unless the plaintiff notice the said causes for a hearing, within twenty days after service of this rule, or discontinue upon the usual terms, that then the defendant have leave to notice the same for a hearing; and if the plaintiff shall elect to notice the same for a hearing, or in his default either to discontinue, or notice the same for a hearing, the defendant shall notice the same for a hearing, the referees shall proceed to hear and examine the proofs and allegations of the parties, unless either party shall show good cause for an adjournment to a future day, of such hearing, on account of the absence of material witnesses, whose attendance could not be procured; and in case the plaintiff shall not appear before the referees and exhibit his proofs, and no proof shall be offered on the part of the defendant, then the referees shall report nothing due 'to the said plaintiff; but on the failure of the plaintiff to appear and exhibit his proofs, if the defendant shall claim a balance due to him in either of the said causes, and the state of the pleadings will admit of the proof, then the defendant may exhibit his proofs and allegations, and the referees shall report such balance as they shall be satisfied is due to the defendant.”

The Court added, that in all cases, hereafter,- where a term has intervened between, the time of granting the order of reference, and the plaintiff’s neglect to proceed to bring the cause to a hearing before the referees, the defendant might apply to the court for such a rule on the plaintiff, as they had directed to be entered in this cause.

Rule granted.