Jackson ex dem. Horton v. Roe

9 Johns. 77

Opinion

Per Curiam.

It is a well settled rule, that a new trial will not be granted, because the party came to trial unprepared, and this rule applies with at least as much force to the plaintiff as to the defendant. In Cooke v. Berry, (1 Wils. 98.) the plaintiff did not come prepared, to meet the defendant’s plea, because he took it to be a sham plea, as he had a letter under the defendant’s hand acknowledging the debt, but that letter he was not prepared to prove, and the defendant had a verdict, and, on motion for a new trial, it was denied. That was a much harder case than this, for there plaintifflost his debt for ever, but here he was only nonsuited; and whether he was nonsuited, or had a verdict against him, he is equally at liberty to bring a new suit, and is only punished in costs, for his neglect or carelessness. The general rule is too well established to be questioned, and too useful to admit of innovation. (2 Salk. 653. 2 Johns. Cases, 319. 2 Binney, 583.)

Motion denied.