
    Farr against M’Dowell.
    A peremptory rule tor trial, is never to be so strictly construed., as not to admit of a fut-their delay, in case of unavoidable accident ox* casualty. Bui; where no extraordinary occurrence has happened, or due diligence has not been used, there the rule is to be adhered to.
    A MOTION was made to postpone the trial in this cause. The action was trover for negroes, and was regularly at issue the term before the last ; but then put off, at the instance of the defendant, on account of the absence of the witnesses. At the last term, it was again put off, for the same reason, but under a peremptory rule for trials at this court.
    
      Pinckney again moved the court for further time: and suggested that some unforeseen accidents had prevented the defendant’s witnesses from attending from North-Carolina, where the process of this court could not run ; and observed, that it would be a ruinous business for the defendant, if he was now pressed on to trial; as well as to his special bail, Mitchell, if he should be compelled to pay the money. It was true, he said, that the cause had been delayed for two courts, and was now under a peremptory rule for trial at a third court; but it ought not to preclude the defendant from the'indulgence of another court, if the circumstances of the case would warrant it. He trusted they would: and produced the affidavit of Mitchell, stating, that the de--fendant and all his witnesses, lived in North-Car olina, at a considerable distance ; that he had written to them all, to be here at this court, and he really expected them; but high freshes in the rivers, and heavy rains, or other unforeseen accidents, might have prevented them from attending, and that no affected delay was really intended. That a peremptory rule ought to be so construed, as to mean, provided some extraordinary accident or occurrence did not prevent it. That it was never intended that such a rule should be construed to be peremptory, without limitation ox exception. Loft. 262. 786. was quoted to shew that peremptory shall not have effect, -where, without the fault of a party, a witness cannot attend. That the postponing a cause, or bringing it on, depends upon the rules of practice, made by the court, for the regularity of proceedings, and advancement of justice ; and that those rules may be dispensed with, or relaxed by the court, upon sufficient reasons. 4 Burr. 1989 — 98. 1 Black. Rep. 514. General rules, say Lord Mansfield, imply an exception, in cases where the general rule is used for oppression, or where the hardship of the case is such, that it would be manifestly unjust to include it within the general rule. 4 Burr. 1989. The court ought never to lay down a general rule so strictly, as that it may put unreasonable difficulties upon suitors, and render them liable to inconveniences, worse than those which the rule was intended to prevent. 4 Burr. 1996. He also quoted general Gansel's case as in point.
    Rutledge, for the plaintiff,
    opposed the motion, and said, that it was incumbent on the special bail, to have sent expressly for the defendant and his witnesses, and not to have depended upon contingencies. There was no parity between this and general GansePs case. There they had seas to cross, and winds and storms to encounter : here, only about 200 miles to ride. If Mitchell should die in the mean time, the plaintiff would be deprived of the benefit of special bail. The defendant may not be here again to give special bail. Were excuses of this nature to be received, and admitted by the court as sufficient, no plaintiff could calculate, with any degree of certainty, when his cause would come on; and although it might be improper to press on a cause, unreasonably, where the defendant could not be ready, or where he was prevented by unavoidable accidents, from attending; yet, in the present case, none such were stated in the affidavit, to justify a further postponement of the trial.
    
      Pinckney then proposed, that Mitchell should bind his heirs and representatives, in case of his death, to pay the debt, if a .verdict should go against the defendant, so as to make the plaintiff safe at all events ; as a further inducement for the court to postpone the trial.
   The Court

were unanimously of opinion, that on this offer, the defendant was at least entitled to have till another court, to prepare himself for trial. Indeed they were inclined to think so before the offer was made. But in this principle they were satisfied, that notwithstanding a rule is peremptory, yet it is with this restriction, that if any unforeseen accident or casualty intervenes, which puts it out of the power of the party or his witnesses to attend ; in such case, the court will never construe the rule so strictly, as to work a manifest injustice to either party. But where no extraordinary occurrence has happened, and there appears to have been an unnecessary delay, or a want of due diligence, there the rule ought to be strictly adhered to. Therefore, let the peremptory rule be enlarged until next term, on payment of the costs of this court, and expenses of plaintiff’s witnesses.

Present, Burke, Heyward and Grimke, Justices.  