The opinion of the Court was delivered by

I have no hesitation in declaring, that the ground is not sufficient to authorize such a decision as the defendant claims, a nonsuit. Nor can I see what pretence there is for alleging that he wras taken by surprise. It was for the defendant, and not the plaintiffs, to compel the attendance of such witnesses as he might deem material to his defence. The bond being admitted, is strong presumptive evidence that the defendant thought he had sufficient testimony to establish his defence, and it ought to have been ascertained before the trial, whether the testimony of Gray would be dispensed with*; and if not, a regard to his own safety should have induced the defendant to have been more upon the alert, and had him subpcened. It is too late after verdict to set up his own laches as a ground for the interposition *192of this Court. Had a new trial been also moved for, I should have deemed that it was not sustainable. Upon the whole, I think the motion be rejected.