
    Chandler against Bicknell.
    It is not a -good, ground of opposition to a motionforjudgment as in case of nonsuit, that the judge allowed the plaintiff to withdraw a juror, because of an unexpected defect in his proof.
    The plaintiff unexpectedly failing at the trial to establish by proof the absence from the state of a subscribing witness to the bond on which this suit was brought, so as to let in secondary evidence; on his motion, the Circuit Judge allowed him to withdraw a juror; and the cause went off for the circuit. And, now,
    
      J. Platt, for the defendant,
    moved for judgment as in case of nonsuit.
    
      C. P. Kirkland, contra,
    insisted that where the Circuit Judge allows the plaintiff to withdraw a juror, this ex cuses him both from payment of the costs, and a judg ment of nonsuit; and he cited Tidd, 785; 1 Archb. Pr 174.
   Curia.

We do not see why this case should not stand on the same footing, as if the cause had gone off at the circuit, for want of sufficient testimony on the part of the plaintiff, without a jury being sworn. We might refuse to nonsuit the plaintiff, or excuse from stipulating; hut not from costs. There must be the usual rule nisi.

Motion granted.  