Absence of party or counsel. ing an adjournment of the cause. He did not attend, the causes were not adjourned, and inquests were taken. And on motion to set them aside on these facts, the court observed— "In this case the defendant lives remote, and was, from that circumstance and infirmity, prevented from attending to these suits at an earlier period. The moral obligation under which the defendant is supposed to labor, of paying his debts, is not to operate with the court, unless a new liability has been incurred. From the misconception of counsel, the remote distance of the defendant, his infirmities, and his having a meritorious defence, the court grant the application, upon payment of costs." So, in the absence of counsel, in an anonymous case, a new trial was granted because the counsel were absent, not thinking the cause would come on, and no defence was made.(1) In Beazley v. Shapleigh, (2) cause shown against a rule obtained on the behalf of the defendant, for a new trial, on affidavits by defendant's attorney and another person, stating that the cause stood No. 17 in the paper-that No. 14 was a question of right of way, and expected to occupy considerable part of the daythat the solicitor having new matter to add to his briefs was at home, making the necessary additions, when the cause was called on, as it had been in his absence, in consequence of having been taken out of course, No. 14 being postponed till next day; and that a verdict of damages was found for the plaintiff. The action was case on a warranty of an unsound horse. Under the particu lar circumstances, the court made the rule absolute. In Peebles v. Ralls, (3) it appeared that Peebles was not present at the trial, and his motion for a new trial was grounded [*164] *on an affidavit stating that on Tuesday, the day before the trial was had, the daughter of Peebles was at the point of death, in Bath county, so that he could not leave her (1) 2 Salk. 645. Absence of party or counsel. to attend to the suit, and procure a continuance; that Robert Marrow, John Peebles, jun., Jared Erwin and George Hawkins, (all of whom were summoned as witnesses a reasonable time before the trial,) were material witnesses for him in his defence; that said Jared Erwin, owing to the sickness of his wife, could not attend; that said Morrow could not attend, owing to his having an appointment to execute a survey; that John Peebles, jun., was in Fleming county, and could not attend owing to high waters. By the Court.-"If in his affidavit Peebles has shown a sufficient apology for not attending the trial, and failing to apply for a continuance, a new trial should most indisputably have been awarded; for he has not only shown that he had, previous to the trial, exercised proper vigilance in causing his witnesses to be summoned, but he has moreover alleged in his affidavit, the materiality of their evidence for his defence, and given satisfactory reasons for their failure to attend the trial. That Peebles has made out a good excuse for his non-attendance at the trial, and not causing an application to be made to the court for a continuance, is equally clear. It is no doubt incumbent on all suitors to be vigilant in preparing and attending on the trial of their causes; and after a verdict against any, his negligence should never form a ground for overturning the verdict and awarding a new trial. A new trial should, therefore, have been awarded." So in Sayer v. Finck.(1) Motion to set aside the inquest taken in this cause, on an affidavit by two persons, that the debt for which the action was brought had been paid, and on [*165] another affidavit by the defendant's *attorney, stating that he did not attend when the cause was called on, because from a conversation with the partner of the plaintiff's attorney, and who he thought was attorney also for the plaintiff, he was led to imagine the trial could not be had on that day, as there were eighteen prior causes on the day docket, and that the plaintiff's attorney himself would not attend. Per Curiam.—“Let the inquest be set aside on payment of all costs. The court grant this only under the peculiar circumstances of the case. It ap (1) 2 Caines, 336. Absence of party or counsel. pears that the defendant's attorney thought he was conversing with a person who was acting as attorney for the plaintiff. This belief might easily be induced from this circumstance, that the attorney on record, and the person spoken with were in partnership. It was, however, but an opinion of the adverse attorney that the cause would not be heard. We shall in future expect more explicit reasons for thinking a cause will not be brought on. The affidavit of merits is very strong. Taking this together with the misapprehension of the defendant's attorney, that the partner of the plaintiff's attorney was absolutely concerned in the suit, are the grounds of our present determination." So in Sherrard v. Olden and others.(1) The cause had been marked for trial, and regular notice had been served on the attorney of the defendants. Neither of the parties defendant, however, attended the court, and when the cause was called on for trial, the counsel for the defendants applied for a postponement, upon an affidavit that Gardener, one of the defendants, was sick in Philadelphia, and that James McCorkle was a material witness for the defendants, that he had sailed for the East Indies in the month of June preceding, and before the cause was at [*166] issue, but was expected to return, &c. *Notwithstand ing this affidavit, however, the court ordered on the trial, and no further opposition being made by the defendants, a verdict passed for the plaintiff for £800. A rule had been obtained to show cause why a new trial should not be granted. Per Curiam.-" At the trial of this cause the request for postponement was refused, not because there did not actually exist sufficient reasons to warrant the court in putting it off, but because sufficient grounds did not appear. It was not yet shown that the defendants had used due diligence. But we now know that the reason why these matters were not proved was, that one of the parties lay sick in Philadelphia, and the other, who resided in Princeton, was unable to attend. That each was ignorant of the situation of the other. That they did what, under the par Absence of party or counsel. ticular circumstances in which they were placed, it was reasonable to require of them, and that no exertions on their part would have availed to bring M'Corkle, who is sworn to be a material witness, to the trial. Considering therefore all these circumstances, that the defendants have been guilty of no laches, but that a verdict has gone against them for a large amount in an action to which they swear they have a good and substantial defence, we think the interests of justice require that they should have an opportunity to try the question upon its merits by another trial." But if the absence be occasioned by neglect, or not satisfactorily accounted for, the court will not grant a new trial. Thus: In Breach v. Casterton.(1) The cause was undefended, and a verdict having been found for the plaintiff against one of the defendants, and a verdict in favor of the other three, Taddy, sergeant, obtained a rule nisi for a new trial, on payment of costs, upon an affidavit that the *defendant's attorney had [*167] been obliged to go to Ireland, and that in his absence the cause had, through the inattention and misconduct of his clerk, been called on as an undefended cause, although there was a good defence on the merits. Wilde, sergeant, who showed cause, objected that before the motion could be made, the consent of the three defendants in whose favor the verdict had been given, ought to be shown; and that they ought not to be put to the inconvenience of a new trial on account of the attorney's neglect. Per Curiam.-"If we were to make this rule absolute, every cause might be tried, twice over, as defendants would lie by to speculate on the amount of the first verdict. We have this term decided against such an application." The case In Masters v. Barnwell.(2) Action for crim. con. came on and a verdict was taken for the plaintiff―no one appearing for the defendant. An application was made for a rule to (1) 7 Bingham, 224. (1) 7 Bingham, 224, in notis. Absence of party or counsel. show cause why a new trial should not be granted, on affidavits setting forth a number of instances of violence on the part of the plaintiff. It was alleged that he followed the defendant from England to France, from France back again to England, thence to Brussels; that in the latter place, (the defendant and the plaintiff's wife living there together,) the plaintiff instituted criminal proceedings against the defendant for the adultery; that the defendant had been sentenced to six months' imprisonment; that he had been repeatedly challenged to fight the plaintiff, and that by these, and by a variety of other proceedings of the same sort, by which he was kept in fear of his life, he had been prevented from giving proper instructions to his attorney; and that if he had not been so prevented, he should have been able to present to the jury a case that would at least have reduced, in [*168] a material degree, the amount of the *damages. Affida vits were produced to resist the motion, and the hardship of the case urged. But the court thought it was plain the defendant had ample time to consult with his attorney, while he was confined in prison; that the charge against him was of the most aggravated nature, and that it would lead to the worst results if a party could lie by, take the chance of a judgment by default, and then demand a trial in the hopes of better success; and denied the motion. The same practice obtains in this state. In Post v. Wright,(1) an inquest had been taken in the cause. A motion was now made to set it aside, on two affidavits, one from the counsel, who stated that he was counsel for the Humane Society of New York, and in that capacity, obliged to visit the jail on Monday in every week; that this cause being noticed for trial on a Monday, he came into court instantly after discharging his duty to the society, when he found an inquest had been taken in the suit; that he on the same day wrote to the attorney of the plaintiff, offering to pay all the costs of the inquest, and to engage to try the cause in the then sittings, if the plaintiff would abandon his inquest, |