Cole v. Wright

Headnote

If the real defendant in a cause (not a party to the record) is instrumental in keeping away plaintiff’s witnesses from the circuit, motion for judgment as in case of non-suit will be denied with costs.

Motion by defendant for judgment as in case of non-suit.—Defendant’s attorney swears, that issue was joined in this cause on the 15th May, 1843, and notice of trial given for the circuit court held at Rochester on the 11th February last. Plaintiff did not proceed to the trial, and issues of a later date were tried in their regular order on the calendar. On the part of the plaintiff it is stated that one Moses Cook is the real defendant in this cause, and that said Cook secreted himself-to avoid the service of a subpoena, by and on the part of the plaintiff, and kept so secreted during the circuit, so that the sheriff was unable to serve an attachment upon him. And also that through the agency and instrumentality of the said Cook and of the defendant, one Hiram L. Collins, an important and indispensable witness for plaintiff was induced to secrete himself (after having been duly subpoenaed by and on behalf of plaintiff), so that the sheriff was unable to serve an attachment upon him, although two attachments had been issued during the circuit, and the sheriff, his officers and other persons had been in search of him. The said Hiram L. Collins promised plaintiff, when he was subpoenaed and his fees paid, that he would attend the circuit as a witness for him. Ptaintiff alleges that he has at every circuit since issue joined been ready and desirous on his part to try the cause.