11 F. Cas. 390 | U.S. Circuit Court for the District of Pennsylvania | 1801
I have no hesitation in this case to say the rule for a non pros, should be made absolute. The plaintiff let the cause sleep from October, 1795 to October, 1800. The defendant harassed with attendances, then took the rule for trial or non pros. This was served on Mr. Wilcocks, and was a solemn notice, that the defendant would be tried or discharged. Since then seven months have elapsed; the lessors having a regular agent, and an attorney for transacting their business. The vague allegations that their attorney had about that time or since, declined business, and their agent, Mr. Morris, been so over-burthened with other affairs, that he could not attend to this, furnish no grounds, upon which a court of justice can act; such representations, if admitted to prevail, may be always urged. As to the change of the attorney in fact, it makes no alteration; one continued until the other was appointed. Besides, Mr. Bond’s powers arrived in February; so that there has been an agent on the spot three months, and nothing done but to put some papers into the hands of counsel, and that not until April. We cannot be influenced by such reasons. The plaintiff ought to proceed to trial, unless he can lay before us a precise legal ground for postponement, or such circumstances of hardship, not resulting from inattention, or the acts of his agent and attorney, as would make us feel that it was essential to justice to retain the cause.
I am always desirous to give indulgence where it may advance justice, and work no considerable injury or infringe any established rule of law. But one party must not be wronged by the extension of accommodations to the other. The only question is, whether the plaintiff has used due diligence to bring this cause to trial, and has been prevented by obstructions which furnish a precise and reasonable ground for a continuance. I do not think he has. I am therefore against it.
The case made by Mr. Rawle for the plaintiff, is insufficient to authorize us to continue the cause: no legal reason is assigned to justify the want of preparation for trial.
Let the rule for a non pros, be made absolute.
It seems the practice for the youngest judge first to deliver his opinion, and the chief judge last.
