1 Yeates 35 | Pa. | 1791
Thk declaration in this cause having been amended, a ve-nire had issued for the trial. Several terms ago, upon the prosecutor not bringing on the cause to trial, the court (according to the authority in the case of Regina v. Banks. 6 Mod. 246, 247) had assigned a day for the trial. The defendant was now desirous that the cause should be brought on, which the counsel for the prosecutor opposed, and urged that the former rule was virtually vacated by the amendment of the narr; and compared it to the case Dali. 405, where it was held that on a rule for trial or non pros, and a plea being added, and particular facts referred, and a report made, that the subsequent plea and reference virtually vacated the previous rule for trial or non pros.; and that it was necessary a new plea should have been put in according to Dali. 465, and that as defendant was not compellable now to try, neither should he have it in his power to compel the state to bring on the trial. E contra, was cited, Dali. 410, that a rule for trial or non pros, is kept up by a general continuance, and no new notice is necessary; and it was contended that the prosecutor should not take advantage of his own application, and the indulgence of the court at the last term.
•co^l *The court recommended it to the defendant’s coun-J sel to consent to postpone the cause, as the bringing it on at this term would end in a discontinuance, the state being unprepared, and only serve to turn the party round to the bringing of a new suit. But the counsel declining so to do, the court observed that they found themselves constrained to order on the cause, and that the prosecutor could not avail himself of the act of the court last term in his favour, upon his own application, to do an injury to the defendant.
The cause being ordered on, the suit was discontinued.