Smith v. Fenton — 2 Cow. 425

Majority

p. 425

Smith against Fenton.

Headnote

Though the Cause have been twice adjourned by consent, and the last adjournment be under the defendant’s stipulation that he will not delay the cause farther ; but will absolutely come to trial on the 2d adjourned day, yet the justice is bound to adjourn again on the defendant’s giving security, and showing on oath, the absence of material testimony, &e., with due diligence used to obtain it.

The defendant is entitled to one adjournment of course, on making oath and giving security ;

And, on showing cause he may have a still farther adjournment, provided the 3 months have not expired.

On certiorari to a Justice’s Court. Fenton sued Smith, in the Court below, and, after issue joined, the cause was twice adjourned, by consent. The second adjournment was under a stipulation of the defendant, that he would not delay the trial further, but would absolutely come to trial on the 17th Jan. 1823, the last adjourned day. On that day the parties appeared, and the defendant requested a further adjournment, offered security, and to make oath of the absence of two material witnesses, who had been subpoenaed by him, but did not attend ; that without their testimony he could not proceed to trial, as he was advised by counsel; that one of them had gone a journey; that he expected to procure their attendance in two or three weeks. The Justice denied the adjournment. Judgment for the plaintiff.

A. Gregory, for the plaintiff in error.

Clark & Birdsall, contra.

The spirit of the 25 dollar act, and the adjudications of this Court upon it, appear to be, that the Justice has a discretion in granting adjournments after the first. One adjournment the defendant may claim as matter of right, on giving security, and making oath of the absence of a material witness. Others, he maybe entitled to on showing sufficient cause; provided the 3 months have not expired. In this case the two first adjournments were by consent ; and though the defendant might have been guilty of a violation of good faith, yet he offered to comply with the requisitions of the act. There had been no laches on his part; for he had subpoenaed his witnesses and they did not attend. We think the Justice ought to have granted the adjournment; though he seems to have acted under the impression that the defendant’s object was delay and vexation. (Easton v. Coe, 2 John. Rep. 383 . Townsend v. Lee, 3 id. 431 . Powers v. Lockwood, 9 id. 133. Beekman v. Wright,

p. 426

11 id. 442. Annin v. Chase, 13 id. 462. Cowen’s Treatise, gqg to 509, where all the cases upon this head are quoted.)

Judgment reversed.