
    WILLIAMS vs. KING.
    What would have been good cause for a continuance, will not be sufficient to set aside a non-suit, provided it were known to the party at the time of suffering the non-suit, but the necessary absence of an attorney is sufficient cause.
    When this action was called a non-suit was suffered, and now Whiteside, moved to have the cause reinstated, upon an affidavit, shewing that the cause was called, one of his material witnesses was absent; that he himself was also absent, upon necessary business.
   Overton, j.

The first ground in the affidavit is certainly not sufficient to reinstate the suit. It might have been a sufficient reason for a continuance when the cause was called, but not to set aside a non-suit. There is certainly a distinction. A non-suit implies that a plaintiff is constrained to abandon his suit, which is not the fact, where he has good cause for a continuance. A voluntary non-suit waives all known reasons for a continuance. The next reason stated, is, the absence of the counsel upon necessary business, and that the gentleman of the bar who appeared for Mr. Whiteside, was not acquainted with the nature of the case. This would have been perfectly satisfactory if the affidavit had described the nature of the necessary business, of which it speaks——Without it, the court cannot judge whether it were necessary or not; and unless it were,there does not seem sufficient reason to reinstate, for if an attorney is voluntarily absent when his cause is called, unless urged by some necessary business, he cannot make it an excuse.

Whiteside for plaintiff, and Scott for defendant.

Campbell, j. and White, j.

continuances are in the discretion of the court, too great a degree of strictness ought not to be observed. It is true that this affidavit does not contain all the certainty that is desirable; but upon the ground that the attorney whose duties would naturally call him here, was absent on necessary business, let it be reinstated, but upon the payment of the costs of this term. 
      
       See Hardins, Rep. 515.
     