
    [*] ANONYMOUS.
    Court refused to nonsuit plaintiff for not trying his cause at circuit, when he offered to proceed, but was prevented by the court, because he did not produce a paper he had promised to do, for the defendant’s use. Costs denied to defendant.
    A motion was made on the part of the defendant, for judgment of nonsuit, on the ground that the plaintiff did not go to trial at the last circuit held in [388] Salem; the facts to support which, were, that when the cause was called on in the paper at the circuit, the plaintiff proffered himself ready for trial; the defendant’s counsel, before the jury was sworn, called on the plaintiff to produce a certain instrument of writing, which he alleged to be in the plaintiff’s hands, and which he had promised to produce on the trial, and which the defendant considered material evidence for him in his defense. The plaintiff refused, however, to produce the paper. It was made out in evidence, to the satisfaction of the Chief Justice, who held the circuit, that the plaintiff had frequently promised the defendant that he would produce the paper on the trial; in consequence of which, the Chief Justice would not permit the plaintiff to proceed.
   Pennington, J.

How can you nonsuit the plaintiff for not going to trial, when-he was ready- and ■ offered to do it, but was restrained by the court.?' The Chief Justice was perfectly óorrect in not forcing the defendant to trial in the situation he was in, and thereby protecting him against a trick of his adversary; but you cannot, turn the plaintiff out of court for not doing what he would have done if the court had not restrained him from doing it.

The counsel for the defendant, finding the court against them on this point, then moved for the costs of the circuit.

Pennington, J.

The plaintiff was not in laches. The cause did not go off on his motion; he proffered himself read for trial; although he has behaved dishonorably, yet you cannot punish a breach of promise in this way, to which

Kirkpatrick, C. J.

J. — Assented.

Rosseel, J.

Inclined to think, that as the cause went off' on account of the unfair dealing of the plaintiff, that he ought to pay costs.

Both rules refused.  