Williams v. King

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.

[S. C., infra, 324.] When this action was called a nonsuit was suffered, and now WHITESIDE moved to have the cause reinstated, upon an affidavit showing that, when the cause was called one of his material witnesses was absent; that he himself was also absent upon necessary business. The first ground in the affidavit is certainly not sufficient to reinstate the suit. It might hare been a sufficient reason for a continuance when the cause was called, but not to set aside a nonsuit. There is certainly a distinction. A nonsuit implies that a plaintiff is constrained to abandon his suit, which is not the fact where he has good cause for a continuance.¹ A voluntary nonsuit 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.

¹ See Hard. 515. *Page 186