When the jury were called to the box, MILLER, the plaintiff's counsel, suffered a nonsuit, and obtained a rule to show cause why it should be set aside. *Page 118
Upon showing cause he produced his own affidavit, stating that the plaintiff was a citizen of Philadelphia, that since the last term he had written to him for certain papers which he conceived necessary to support the action; that he received for answer, the papers were in the hands of his former attorney, J. White, that, upon inquiry of J. White, he was informed that he had not such papers, upon which he wrote again to the plaintiff, and did not receive the papers alluded to until the Friday before the commencement of this term; and that the reason why he the deponent did not get a commission to take depositions, was, that he did not believe it would answer any purpose without the papers alluded to. The reasons were also stated why it was thought the testimony would be material. The cause stands upon the same footing as if it were an application at the first term after issue joined. The cause has been continued by consent, either expressed or implied, for a general continuance amounts to implied consent. Therefore, the defendants have no cause to complain of the length of time this cause has been depending. Supposing this the first application for a continuance, according to our practice it would be granted, and consequently the nonsuit ought to be set aside. The cause was continued at the last term, as it had *Page 119 uniformly been before; since which the affidavit shows that exertions have been used to procure certain papers; that they were procured at so late a period as scarcely to afford time to make the necessary preparation, at least it seems reasonable to think so.
The affidavit also states the papers to be material. It is the duty of all judicial tribunals to make an end of disputes by a fair trial, if it can be done consistently with the rules of the Court, — no trial in this case has been had, therefore let the nonsuit be set aside.