Page:Federal Reporter, 1st Series, Volume 5.djvu/258

 246 FSDEBAIi BSPOBTEB. �the costs, and to reinstate the cause upon the docket. This is resisted upon the ground that it was gross negligence not to be prepared with the proof, and the court should not tolerate a practice encouraging such negligence ; and upon the further ground that the defendant, on a new suit being brought, wishea to change bis defence to a special plea of non estfactum, �The attorney for the plaintiff, in support of the motion, files his affidavit stating that the papers had been mislaid until a few days before the trial; that in looking over them he saw a seal and supposed it was the seal of the treasury department, and did not notice otherwise until the trial ; and that he was misled because no objection was taken before the trial. �It is difficult to see how any one could mistake the mode of proof adopted in this deposition for that pointed out by the Eavised Statutes, but the attorney here swears that he made that mistake, and the only question is whether the affi- davit shows sufficient cause. �It was not formerly usual to grant a new trial after non- suit, but for the sake of obtaining justice it may now be had in that as well as other cases. Tidd's Pr. 905; Bac. Ab. tit. "Nonsuit;" Comyn's Dig. tit, "Pleader, XI.;" Sadler v. Evans, 4 Burr. 1984. An affidavit showing cause is undoubt- edly necessary, and this implies that there must be som& good and sufficient reason moving the court to exercise its- discretion to grant or refuse the motion. Dearing v. Taylor, 1 Tenn. 49; Sharpless v. Sevier, là. 117; McAllister v. Will- iams, Id. 119; Union Bank v. Carr, 2 Humph. 345; Trice v. Smith, 6 Yerg. 319; Sayers y. Holmes, 2 Cold. 259. �We have no ctatute in Tennessee authorizing a court to set aside a voluntary nonsuit, but it is the constant practice to do it, as the above cases will show. The Code enacts that the plaintiff may, at any time before the jury retires, or be- fore the cause is finally submitted to the court, take a non- suit. T. & S. Code, 2964, 2966. Eead in the light of thfr very able exposition of the common law on this subject found in the case or Folger v. The Robert G. Shaw, 2 Woodb. & Llinot, 531, these statutes imply indulgence to the plaintiff ����