
    LAFFERTY v. ROSS AND DAVIS.
    Non suit after evidence — opening a non suit — fining a witness.
    Where the plaintiff progresses with his testimony, expecting a witness in time to examine him, he will be permitted to enter a non suit.
    The non suit will be opened up at his cost, if the statute of limitations will bar a new suit.
    A witness who is detained from court by his own dilatory movements until the cause in which he is summoned is sacrificed, will be fined.
    After the plaintiff had proceeded some way with his testimony, he informed the court that owing to the absence of a witness who had been summoned, and for whom he had since issued an attachment, he must submit to a non suit: whereupon the jury were discharged, and a non suit ordered.
    
      S. Brush, for the plaintiff,
    now moved to open up the non suit, and read a statement showing the materiality of the testimony of the absent witness. He also showed that the statute of limitations would bar the action, if the plaintiff were driven to a new suit. He claimed that his motion should be allowed without costs.
   By the Court.

This application is addressed to our discretion. The absence of the witness was known before the trial, and was good ground for a continuance, if one had been applied for. If it were not for the statute of limitations, we should leave the party to his new suit; as it is, the non suit is opened up; the plaintiff to pay all the costs which have accrued until the making up of the issue, and the cause is continued.

The witness whose non attendance occasioned the non suit, was brought in on an attachment, and being interrogated, said he had been subpoenaed, and intended to come to court. Had hired a horse last night, but could not get started this morning in season to get to court, fourteen miles, until eleven o’clock.

By the Court. The business of the court cannot proceed unless its process is obeyed: no excuse is offered here: the party only moved so dilatorily, that he failed to arrive until after the cause was sacrificed. He is ordered to pay a fine of two dollars and costs.  