
    
      James Jackson, on the demise of David Van Bergen and others, v. Samuel Haight.
    
    SCOTT, on an affidavit stating that this cause had been duly noticed for the three last circuits, and that younger issues had been tried, moved for judgment as in case of nonsuit, for not proceeding to trial at the last circuit in Green, pursuant to notice.
    
      
      Champlin
    
    resisted the application, on a deposition setting forth that the papers necessary for the defence had been left with him for eight months previous to the circuit, to use at the trial; but that they had been, two weeks before it was to have been held, taken from him by the person from whom he had received them, under a promise to return them before the time the cause would come on. That the title depended on the Catslcill patent; from the great length of the documents, and exemplifications in which, the expense of copies was so great, as to render the saving it an object of importance. That in all other respects the defendant was ready for trial, and now relied on. these circumstances being received as a sufficient excuse.
    
      Scott, in reply,
    urged that the benefit of the papers might have been had by a subpoena duces tecum.
    
   Per Curiam.

We think the excuse sufficient to prevent a nonsuit, but not to relieve from costs ; let> therefore, the defendant take nothing by his motion, on the plaintiff’s paying costs, for not bringing the cause to trial at the last circuit.  