Sheppard v. . Salter

He afterwards offered an affidavit that one of his witnesses, by whose testimony he would have been able to prove a reassumption within three years, was at his counsel's elbow a little before the cause came on, but was out of the courthouse at the time he was called. Whereupon he prayed that the nonsuit be set aside.

The Court said he ought to have prayed a continuance.

But on his observing that he had thought that by going to trial and satisfying the Court, by the testimony of a witness who attended, that he had a good cause of action, and that he failed only on the proof of a reassumption: the justice of the case being on his side, he would appear entitled to the favor he prayed. Let the nonsuit be set aside, on payment of full costs.

McCOY, J., tacente. NOTE. — See Williams v. Harper, 4 N.C. 284; Reynolds v. Boyd,23 N.C. 106. *Page 81