5 Cow. 30
Decided October 15, 1825
New York Supreme Court · decided 1825-10-15
The plaintiff unexpectedly failing at the trial to establish by proof the absence from the state of a subscribing witness to the bond on which this suit was brought, so as to let in secondary evidence; on his motion, the Circuit Judge allowed him to withdraw a juror; and the cause went off for the circuit. And, now,
Decided 1825-10-15
¶1We do not see why this case should not stand on the same footing, as if the cause had gone off at the circuit, for want of sufficient testimony on the part of the plaintiff, without a jury being sworn. We might refuse to nonsuit the plaintiff, or excuse from stipulating; hut not from costs. There must be the usual rule nisi.
¶2Motion granted.