The law and practice is perfectly settled, and no innovation can be made )hereon, unless evident injustice would be the result. To make any reform at Nisi Prius, where only part of the court sit together, would be peculiar improperly. There is a technical system of reasoning in the law. In some instances, the plaintiff is allowed superior advantages to the defendant, as in suffering a non-suit, not being obliged to file his venire facias against his will, (3 Mod. 245.) nor to give *241any reason why ho does not try his canse the first court, after issue joined, &c. The process by proviso is well known. In civil actions, the defendant cannot carry down a cause by proviso, till there be a laches in the plaintiff. 6 Mod. 246. 2 Salk. 652. And it has frequently been ruled, that though he has a proviso rule, ho is not entitled to try his suit, unless he has taken out his distringas by proviso. The words in 3 Black. Com. 357, are very general, but they clearly imply that the plaintiff has been guilty of laches. This appears also from the statute of 14 Geo. 2, c. 17, (6 Ruff. Stat. 417,) from which our act of assembly, passed 21st. February, 1767, (1 Dall. Laws, 475,) is copied almost verbatim. Thoro must be a previous neglect on the part of the plaintiff, to entitle the defendant to a rule for trial or non-suit. If the law was, as has been contended for by the defendant’s counsel, tho statute and act of assembly, instead of meliorating the condition of the defendants, would place them in a worse situation than they were before.

Mr. Ross, pro quer.

Motion denied.