Page:United States Reports, Volume 1.djvu/358

Rh 

1788.

N this caufe there was a rule to try next term, or non pros ; the term being clapfed, Levy, at the fettlement of the dockets, figned the non pros  in the Prothonotary's  office; an not Armʃtrong moved to fet it afide.

SHIPPEN,Preʃident :– This is not like a rule to plead, or declare ; for, at rial is a thing that muft be in the face of the country. A non pros of this kind, ought, therefore, to be moved for in Court, when the Plaintiff may affign reafons for the delay of trial.

feemed fatisfied that the non pros ought to be fet afide, but at the requeft of Levy, who thought he could produce fome authorities on the fubject, they only granted a rule to fhew caufe &c. The rule, however, was afterwards made abfolute. 

HE referees appointed in this caufe, applied to the Court for inftructions on a point of law, in order to guide them in making their report.

But, :–The referees muft firft exercife their judgment upon the lights they have received ; and the queftion, being afterwards brought regularly before us, we will determine, whether they have acted right, or not. It would not only be an inconvenient practice, but, in a great degree deftructive of the principle and ufes of a reference, if fuch applications were to be complied with ; and, therefore, we think it is proper to avoid eftablifhing a precedent.

PENMAN