Majority
p. 92Jackson, on the demise of Van Bergen and others, against Haight.
Headnote
If a plaintiff be prevented from proceeding to trial for want of papera, which he had an honest fair cause to expect, it will be sufficient to prevent an application for judgment as in case of nonsuit, but not to excuse the costa of the circuit.Scott, on an affidavit stating that this cause had been duly noticed for the three last circuits, and that younger issues had been tried, moved for judgment as in case of nonsuit for not proceeding to trial at the last circuit in Green, pursuant to notice.
p. 93
Ohamplin resisted the application,
on a deposition setting forth that the papers necessary for- the defence had been left with him for eight months previous to the circuit, to use at the trial; but that they had been, two weeks before it was to have been held, taken from him by the person from whom he had received them, under a promise to return them before the time the cause would come on. That the title depended on the Oatskill patent; from the great length of the documents, and exemplifications in which, the expense, of cppies was so great as to render the saving it an object of importance. That in all other respects the defendant was ready for 'trial, and now relied on these circumstances being received as a sufficient excuse.
Scott, in reply,,
urged that the benefit of the papers might have been had by a subpoena duces tecum.
We think the excuse sufficient to prevent a nonsuit, but not to relieve from costs; let, therefore, the defendant take nothing by his motion, on the plaintiff’s paying costs for not bringing the cause to trial at the last circuit.
Motion refused on payment of costs of the circuit.