Page:Federal Reporter, 1st Series, Volume 5.djvu/259

 JACKSON V. WALDfiOK. ���247 ���beyond the common-law rules in his favor, and, I think, sug- gest a more liberal policy than, without those statutes, we would- be autiiorized to adopt. In McAllister v. Williams, supra, it ie said that tho setting aside a nonsuit so aa to make way for a trial is more to be compared with the principlea whieh govern the court in granting continuances than those which obtain in granting a new trial. And in Williams v. Sinclair, 3 McLean, 289, it is said, where a plaintiff has suf- fered a nonsuit through gross carelessness, or where it is manifest from the trial that he is without merits, the court will not set aside the nonsuit. But where the plaintjff has been surprised, or where it is clear he has merits, the nonsuit will be set aside. This will be done on both grounds for the purposes of justice. As the court usually requires the plaiii- tifï to pay, at least, the costs of the trial, if not ail the costs that have accrued, no hardship is imposed on the defendant. In Sharpless v. Sevier, supra, a failure to procure document- ary proofs, after exertions made, was held sufficient, and I -think ail the Tennessee cases above cited indicate a very lib- eral practice on this subjeet. �The case of Murray v. Marsh, 2 Hayw. (N. C.) 472, de- «ided by Mr. Chief Justice Marshall and Mr. District Judge Potter, coming as it does from that source, and our mother state, from which we have derived many of otir laws, is strongly against the plaintiff here, and but for the considera- tions above mentioned, arising out of our own state practice, would be conclusive. In that case depositions supposed to be sufficient were rejected, because not properly taken; and it was held that if a plaintiff, supposing himself ready, press for trial, and it is found on trial that the testimony he relied on cannot be given in evidence as he expected, and he be non-
 * suited, the allegation of surprise shaU not prevail to set

aside the nonsuit." So, in Thompson v. Thompson, là. 612, where an attested copy of a bill of sale was ofEered, in the absence of the original, a motion to set aside the nonsuit was refused, because that was not surprise but negligence. And see Arrington v, Coleman, Id. 489, and the cases cited in .the note to lîutledje v. Read, Id. 428, (2d Ed. by Battle;) ����