Clements v. Benjamin , 12 Johns. 299 ( 1815 )

tj * * ; ' Per Curiam.

• • e There can be tio doubt, but that it is within •• • the province of a justice fco nonsuit a-plaintiff, when, in his nion, the testimony offered does not support the action, And if, upon the return to ,a certiorari, the evidence offered would, in the opinion of this court, have supported the action, or was proper, for the consideration of the jury, the judgment of non-suit will' be. reversed. , But the .evidence not being returned • ° m this case, we cannot say how* far it .supported the action. If . ■ 1 the return was imperfect, it was the duty of the plaintiff in error to have procured a further return to be made. We have repeatedly said, that the error complained of ought to appear affirmatively, otherwise,.we. are' to presume the judgment correct.

The. justice, acted correctly in setting aside the imperfect and unfinished examination of the plaintiff’s witness. After the adiournment, for. the purpose of his recovering from his indispov. . 1 , , , . . r sition, it was the plaintiff’s duty to have him again m court, or assign some reason why he- was not there. It was the right of the defendant to cross-examine him; and he had a right to presume that the plaintiff would have him in court for that pur-

Judgment affirmed.