Newbern,

September Term, 1796.

#### SHEPPARD versus SALTER.

CASE sur assumpsit. The plaintiff went to trial; proved his debt but could not give evidence to repel the plea of the statute limitations: and suffered a nonsuit.

He afterwards offered an affidavit that one of his witnesses, whose testimony he would have been able to prove a re-assumption within three years, was at his counsel's elbow a little before the cause came on, but was out of the court-house at the time he was called.—Whereupon he prayed that the nonsuit be set aside.

The Court

said he ought to have prayed a continuance.

But on his observing that he had thought that by going to trial and satisfying the court, by the testimony of a witness who attended, that he had a good cause of action, and that he failed only on the proof of a re-assumption: the justice of the case being on his side, he would appear entitled to the favour he prayed:

*41 Davit for the plaintiff. Arnett for the defendant.

Stone, J.

Let the nonsuit be set aside, on payments of full costs.

M’Coy, J. tacente.