
    Richard Quarles against Executors of William F. Taylor.
    DÍlíce,0 thbatnit negro?who próvpectoíTo1 pro™ siderationby the subscribing wit™tte“rodSn ttethpiatat?ff!3tbe defendant took no “imnaV°the°tdriaie on defendant to subj3cenahim;and th^elecutSifof trfai, ”, verdict there Siic/reiaches!brhlS0'™
    The present was an action of debt, brought on a bond, given by the defendant, Quarks, to the executors of William Forties Taylor, deceased, for a negro man slave, purchased at the sale oi the ° L personal estate of the testator.
    To this bond a certain John Gray was the sub-t/ scribing witness, who had also acted as a clerk at the sale oi the estate*
    . , The defendant would have screened himself from the payment of this debt, on the ground of the negro man being diseased at the time of the purchase, and his death shortly afterwards. He admitted the execution of the bond, and called witnesses to prove that the negro (whom he alleged to have been the consideration of the bond) was infirm. The testimony failing to prove that the bond had been given for this slave, the plaintiff obtained a verdict; from which an appeal was claimed, and the defendant now movés for a nonsuit, on the following grounds, viz. “ That relying on the necessity of Gray’s testimony, who was clerk at the sale, and witness to the bond, to prove the same, the defendant did not subpoena him to prove that the consideration of said bond was the negro aforesaid, and supposed that inasmuch as he admitted the execution of the bond, (the subscribing witness, Gray, being absent,) the plaintiff would not hesitate to admit the consideration of said bond; it was not admitted, and the defendant completely surprised, and deprived of a just, legal, and substantial fence.
    From hence it appears that the defendant thinks himself entitled to a nonsuit, because the plaintiffs had omitted to subpoena a witness whom it is alleged could have defeated the claim which they had exhibited, by ■ proving that the bond was given without consideration.
   The opinion of the Court was delivered by

Mr. Justice Gantt.

I have no hesitation in declaring, that the ground is not sufficient to authorize such a decision as the defendant claims, a nonsuit. Nor can I see what pretence there is for alleging that he wras taken by surprise. It was for the defendant, and not the plaintiffs, to compel the attendance of such witnesses as he might deem material to his defence. The bond being admitted, is strong presumptive evidence that the defendant thought he had sufficient testimony to establish his defence, and it ought to have been ascertained before the trial, whether the testimony of Gray would be dispensed with*; and if not, a regard to his own safety should have induced the defendant to have been more upon the alert, and had him subpcened. It is too late after verdict to set up his own laches as a ground for the interposition of this Court. Had a new trial been also moved for, I should have deemed that it was not sustainable. Upon the whole, I think the motion be rejected.

Grimke, Johnson, Cheve?, and Noff, J. concurred.  