By the rule of May, 1805, if any party would take advantage of the failure of the adverse party in going to trial within the time prescribed by law, he shall take such advantage at the term next after such failure, and if lie fail so to do it shall be considered as a waiver of his *102right and he shall not afterwards have such judgment, unless upon a rule 'nisi giving the party such short time to go to trial as the court shall direct. “ The time prescribed by law ” is the next term after issue joined, if there be sufficient time for notice of trial, Rev. Laws, 422, sec. 64; in this case, the June Circuit. Advantage not having-been taken of this failure at September term, it was thereby waived. The defendant cannot avail himself of a subsequent failure without having previously a rule nisi giving the party such time to go to trial as the court shall direct; such rule not having been taken in this case, the present motion is not allowed.