
    Marseles against Clopper.
    If the plaintiff does not proceed to trial, the^bsence^ of material who 6Shave been subpoenaed,he is not obliged to sti-púlate to prevent a non-suit.
    SANDFQRH, for the plaintiff, moved for judgment, . . „ ,. . , as in case of non-suit, for not proceeding to trial.
    
      T. A. Emmet, contra,
    read an affidavit,, stating, that at material witness in the cause had been duly subpoenaed, and pains taken to procure his attendance at the trial; but that the witness did not attend, and the plaintiff's coun- . ‘ sel did not think it safe to proceed to the trial of the cause wjthout his testimony. These facts, he said, were sufficient to excuse the plaintiff from a stipulation, 
    
    
      
      
         Where a plaintiff refuses to try his cause, having1 good reason to believe that he cannot have a fair trial by an impartial jury, he shall not be non-suited for that cause. Pringle v. Nuse, 1 Cowen, 432.
    
   Per Curiam.

The plaintiff need not stipulate, but he must pay the costs.

Rule refused.  