Page:Federal Reporter, 1st Series, Volume 8.djvu/87

UNITED STATES V. HUMASON. 73 �case of the U. S. v. Savage, another surety in the same bonds, stand- ing upon sa similar stipulation, was also included in such order. On April 1 Ith the plaintiff filed a motion for a new trial, which was argued and submitted on May llth. It is not claimed that the court erred in refusing to allow the plaintiff to become nonsuit. By section 243 of the Oregon Code a nonsuit cannot be granted on the motion of the plain- tiff only, before trial or afterwards, without the consent of the defend- ant; and the later and better rule of the common law is to the same effect. Whenever the trial bas been commenced, the rightof the plain- tiff to become nonsuit, and vex and harass the defendant with another action for the same cause, is gone. Folger v. The Robert G. Shaw, 2 W. &M.531. �The power to grant a new trial is sufScient to prevent a failure of justice in the cases where a nonsuit was formerly suffered by the plain- tiff to m eet a surprise caused by the failure of evidence, or an unex- pected ruling of the court; inwhich proceeding the court may impose Buch terms and conditions upon the moving party as a due regard to the rights and convenience of the other may require. Neither is it claimed that the court erred in refusing to admit the copies of the alleged bonds in evidence; because it is admitted that a copy of a bond certified under said section 882 is not evidence of the execution of such bond where the same is denied, but that it must be certified under section 886, by the register, subject to the right of thp defend- ant to call for the production of the original instrument. �But a new trial as to the case of Humason is asked for on the ground of "accident on the part of the secretary of the treasury in certifying the copies of the bonds iipon which the action" is brought under section 882 of the Revised Statutes, instead of section 886 thereof, "which mistake was not discovered by the attomey for the United States until at the trial, when the error was first discovered ; the papers in the case having been forwarded to the attorney for the United States by the department of justice at Washington." These certificates were made nearly three years before the trial, and the answer denying the execution of the bonds, and which first made it necessary to have copies of them certified by the register of the treasury, under section 886, was filed on August 6, 1879, — at least 18 months before the trial. �Upon this state of f aets there is no ground to claim that the plain- tiff was, in contemplation of law, surprised at the trial by the rejec- tion of the copies of the bonds. The secretary of the treasury did not by either "accident" ov mistake eertify to copies of the bonds ��� �