The Court were unanimously of opinion, that on this offer, the defendant was at least entitled to have till another court, to prepare himself for trial. Indeed they were inclined to think so before the offer was made. But in this principle they were satisfied, that notwithstanding a rule is peremptory, yet it is with this restriction, that if any unforeseen accident or casualty intervenes, which puts it out of the power of the party or his witnesses to attend ; in such case, the court will never construe the rule so strictly, as to work a manifest injustice to either party.
But where no extraordinary occurrence has happened, and there appears to have been an unnecessary delay, or a want of due diligence, there the rule ought to be strictly adhered to. Therefore, let the peremptory rule be enlarged until next term, on payment of the costs of this court, and expenses of plaintiff’s witnesses. Present, Burke, Heyward and Grimke, Justices.