*128WHERE on the last day but one of a circuit, there appear so many old causes to be tried, that the judge himself is of opinion it seemed impossible a young issue could be brought on, and, from this conviction, so many of the suitors go home that an unexpected opportunity otters ox trying a *129cause, the plaintiff in which, had, with his witnesses, left the circuit, the court said, he was not in default, and, on a motion for judgment as in case of nonsuit, not only refused the application, but excused from costs and stipulation.
To gain a priority on a motion for judgment upon a frivolous demurrer, the notice must state the frivolousness as the ground of application.