counsel.

The non-attendance of counsel is an excuse where it has Absence of arisen from sickness, or other inevitable cause ;71 but not where it has been occasioned by other professional business :72 and it makes no difference that the counsel engaged was a public officer as the attorney general, or a district attorney.7

73

witness.

The absence of a material witness is an excuse, if due dili- Absence of gence be shown to procure his attendance, 101 but not otherwise ;74 so the want of documents or papers which there was reasonable ground to expect ;75 or a surprise on the part of the plaintiff from a sudden defect in the testimony, which could not be supplied at the circuit.76 In these cases it seems the plaintiff's affidavit need not state the name of the witness," 77 nor what the documentary evidence is.78

depending on

tion.

Where two or more causes, in favour of the same plaintiff, Two causes depend upon the same question, after verdict against him in same quesone, if he intend to obtain the opinion of the court on the question involved, he will not be nonsuited for not trying the remaining causes until he has had an opportunity to do so ;79 and if the plaintiff's attorney or counsel has informed the attorney or counsel of the defendant of such intention, the motion will be denied with costs: but if not, the plaintiff must pay the costs of the attendance of the defendant's witnesses at the circuit, from the close of the first trial until the adjournment of the circuit,80 and will be required to stipulate to try the cause at the next circuit.81 The proper course in cases of

712 Cowen. Rep. 578. 1 Caines' Rep. 152.

72 2 Cowen. Rep. 578.

73 2 Caines' Rep. 246. sed vide 1 Caines' Rep. 58.

101 4 Cowen. Rep. 553. 2 Johns. Rep. 480. 2 Caines' Rep. 92. 74 1 Wendell. Rep. 34. 1 Caines' R ep. 172.

75 2 Caines' Rep. 93. 6 Taunt.

76 5 Cowen. Rep. 422.

778 Taunt. 104. 6 Taunt. 150. contra.

78 6 Taunt. 150. et vide 1 Dowl. & Ryl. 159.

79 2 Cowen. Rep. 452. 2 Caines'
Rep. 95.

80 2 Cowen. Rep. 452. n. a.
1 2 Wend. Rep. 284.

tur.

this kind is to apply to the court for a rule, that one of the causes be tried, and that the others abide the event.8

Where a witness is kept out of the the motion will be denied with costs:

82

way by the defendant,

but it is no excuse that

.84

Ne recipia the defendant entered a ne recipiatur, the record not having been filed on the first day of the circuit ; unless it appear that the defendant refused to vacate the rule, though applied to, before his witnesses had left the court; and in such case it seems the defendant will be required to pay the costs.85

Insolvency

of defendant.

Refusal of judge, &c. to try cause,

&C.

If the defendant has become insolvent, and obtained a discharge, though of his person only, the plaintiff will not be nonsuited for not going to trial;86 but otherwise, the poverty or insolvency of the defendant is no excuse.87

If the judge refuse to try a cause which has been noticed, or the plaintiff will not bring it on, because the judge has improperly overruled a challenge,89 the plaintiff will not be nonsuited and where the circuit judge suspended the trial of a cause, on the suggestion of the plaintiff's counsel, that it would be a long cause, and the business afterwards took such a course, that the cause conld not be tried at that circuit, the court denied the motion, but without costs.90 But where the motion was opposed, on the gronnd that it had been the practice of the circuit judge, at the former circuits, to call over the calendar on the first day of the circuit, but not to take it up in order until the second day; that such was the case at the circuit for which the cause was noticed, and that it was not reached at the subsequent call; the court would not recognise any such practice, but held that it was the duty of

82 Ib.

83

1 Wendell. Rep. 77. 84 8 Cowen. Rep. 110.

85 1 Wendell. Rep. 76.

26

en. Rep. 422. 3 Johns. Rep. 333. sed vide 1 Johns. Rep. 141.

38 12 East. Rep. 247. et vide 2 Caines' Rep. 94. 3 Caines' Rep.

6 Johns. Rep. 333. 1 Johns. 128. 2 Cowen. Rep. 511.

Rep. 143.

39 9 Johns. Rep. 260.

37 1 Wendell. Rep. 34. 5 Cow

90 2 Cowen. Rep. 511.

the plaintiff, to have been ready for trial, when his cause was first called.91

charged.

Where a cause was regularly brought to trial, pursuant to Jury disnotice, and the jury were discharged, because they could not agree, and the judge allowed the cause to be put again on the calendar, but the plaintiff's counsel refused to bring it to trial again at that circuit; it was held the plaintiffs were not in default, and the motion for nonsuit was denied.92

Where the proceedings, on the part of the plaintiff, had been stayed, until the payment of costs in another suit, and the plaintiff neither paid the costs nor proceeded to trial; the court denied the motion for nonsuit, in the first instance, but granted a rule, that unless the costs should be paid within thirty days after service of the rule, judgment of nonsuit should be entered.93

94

to arbitra

If the cause has been submitted to arbitrators, before the Submission circuit, or if it has not been brought on, in consequence of tors. an agreement between the parties, or their counsel or attornies,95 the motion will be denied with costs: but the agreement must be in writing, or the court will not notice it, unless it appears that there was an intention to deceive or mislead.96

Where a suit had been settled, with the knowledge of the defendant's attorney, who, notwithstanding, went on and obtained judgment as in case of nonsuit, the court, on motion, set aside the judgment, and ordered the defendant's attorney to pay the costs of the motion.97

Suit settled.

Mistake as

A mistake, on the part of the plaintiff's attorney, as to a rule of practice, will not, in general, excuse from costs and to practice. stipulation;98 but the plaintiff was allowed to stipulate without costs, where the attorney had been misled by the English practice, and our own had not been perfectly settled.99

Of neglect to go to trial, pursuant to stipulation.] According to the terms of the stipulation, if the plaintiff be again Defendant in default, the defendant is entitled to judgment; but he

cannot take

course.

judgment of cannot enter up judgment of course, as the plaintiff may still have had some sufficient excuse, but must apply to the court for that purpose, by motion founded on the plaintiff's stipulation and an affidavit of his default.100 In these cases, if the excuse be deemed sufficient, the plaintiff will be allowed to stipulate anew, on payment of costs.1

What is considered suffi

cient excuse.

Consequence of delay.

The unexpected absence of a material witness, has been allowed as an excuse:2 so the continued absence of a witness, who was a seafaring man, and had never been in the state since the commencement of the suit.s

Where a cause had been noticed for the circuit in the city of New York, and the notice afterwards countermanded, because the plaintiff had reason to believe that he could not then be prepared for trial, on account of the interruption to business occasioned by an epidemic prevailing in the city, the court excused the plaintiff, on the usual terms.1

When the defendant has been sentenced to the state prison, the plaintiff will not be compelled to stipulate anew, but will be allowed to discontinue without costs.5

The motion must be made without delay; and where the defendant suffered two terms to elapse after the plaintiff's default, he was considered as having waived the default, and the plaintiff was allowed to stipulate again.

CORRIGENDA.

Page 8, in the second line from the top between "the" and " agreement," insert "performance of the"

In note 1, page 27, insert, "as between the heir and executor the revised statutes have in some cases defined what are fixtures. 2 R. St. 82.83. s. 6. 7."

Page 320, at the end of the enumeration of the branches of the jurisdiction of the supreme court of the United States, add "8. It has the like jurisdiction over questions coming up from the circuit court by a certificate that the opinions of the judges of the circuit court are opposed upon such questions."

Page 368, line 2, after " upon," insert, "the case."

ib. note 3, insert, "2 Tidd. Pract. 170. et vide." Page 371, line 5, for "attached," read "retaken."