Pier v. Page

Headnote

Where the circuit judge permits a cause to be passed for the day without prejudice to the plaintiff, where he is ready when the cause is called, and the defendant not; the defendant is not entitled to judgment as in case of non-suit, when no opportunity is afterwards afforded to try.

Motion by defendant for judgment as in case of non-suit.—The cause was called on the first day of the circuit, no one answering for defendant;

plaintiff’s counsel said to circuit judge, in consideration of defendant’s distant residence, that he, although ready to try, would permit the cause to he passed for the day; provided it should not prejudice the plaintiff, or in any way make plaintiff liable for defendant’s costs of preparing for trial; and the judge considered the cause as passed for the day only, and without prejudice to plaintiff. An indictment consumed the residue of the circuit and the cause was not again called.