
    Proudfit against Henman and Henman.
    Where a justice adjourned a cause, on the suggestion of the plaintiff, that the defendant had agreed to an adjournment, and* on the affidavit of the plaintiff of the absence of a material witness, without showing due diligence to procure his attendance, ifcwas held that the justice, had not an unb * mited discretion to adjourn at the suggestion of the plaintiff and that such adjournment wa» a discontinuance of the cause»
    IN error, on certiorari, from a justice’s court.
    The defendants in error sued the plaintiff in error for overflowing their land by his mill-dam. Issue was joined and a venire returned, on the 28th of February. By agreement between the parties, the cause was adjourned to the 22d August. The plaintiffs appeared, but the defendant did not appear. The plaintiffs stated that the defendant and they had agreed to adjourn further, until notified by the plaintiffs, and that they had given notice for the 19th September ; and the plaintiffs also made oath, that they could not safely proceed to trial, for the" want of a material witness, who lived at a distance. The cause was adjourned to the 19th September. The plaintiffs then appeared, and the defendant did not appear, and a judgment was given for the plaintiffs.
   Per Curiam.

The last adjournment was without proof of any consent by the defendant. It was upon the suggestion of the plaintiffs, and without authority. The plaintiffs did not show that they had used due diligence to procure the attendance of the absent witness, nor at what distance he lived. There is no provision in the act giviiig to the magistrate unlimited discretion to adjourn, for any length of time, upon the suggestion, and at the pleasure of the plaintiff. This adjournment amounted to a discontinuance, and the cause was out pf court.

Judgment reversed.  