delivered the resolution of the Court. That whatever might be their opinion in other cases of this kind, in the present instance, they were clearly of opinion that Thornton had not made such a case as should entitle him to have his cause re-docketed. For, he does not shew that he was under any surprise, or that he gave himself any trouble about the matter. It is only stated that Mr. Footes applied; but by what authority, or why application was not made to counsel, after Mr. Marshall left the bar, does not appear.

Rule to be discharged.

*194Call, then moved, that the order might be suspended, until the arrival of Mr. Bootes, to see if the defect of evidence, as to the surprise, could not be supplied; and read the certificate of Mr. Marshall, in these words: “I am told that it is questioned whether I was employed for Thornton, in the Court of Appeals, from the Court of Chancery. I was employed, and certainly should have appeared, had I been present when the case was called. I had not received the fee, but attributed that entirely to my being so frequently from home, and certainly felt no difficulty on that account with Col. Thornton. I did not think, from my idea of the state of the docket, that the cause could have been heard so soon, as I understood it was dismissed; but I really thought I had been marked?’

That is not sufficient. Mr. Thornton ought to have applied to counsel himself, after Mr. Mar shall's appointment.

Rule discharged.*