Seers v. Grandy — 1 Johns. 514

Majority

p. 514

Seers against Grandy.

Headnote

journment of a cause before a justice ofthe tice^ought ¿US" receive such affidavit,unless some special contrary be^ shown. If an attorney of the defendant offer to make affidavit of the absence of a material witness, and request an ad-

ON certiorari from a justice’s court. The errors assigned were, 1. That the venire was directed to the constables of Argyle, and was delivered to a constable of Hebron to be executed. 2. That the declaration contained no venue. 3. That the defendant’s attorney requested an ad-4ournment and offered to make oath of the absence of a ma- J . . terial witness, which the justice refused. 4. That the return does not state that any oath was administered to the constable who kept the jury.

„ - , , . Ingalls, lor the plaintiff m error.

Shepherd, contra.

The refusal to admit the defendant’s attorney to make affidavit of the absence of a material witness, as the ground for requesting an adjournment of the cause, was a denial of right; for in certain cases, where the defendant himself does not appear, his attorney may make such affidavit, especially, when no reason is alleged against it. The defence on the merits, afterwards, was no waiver of the defendant’s right to an adjournment. For this reason,, we are of opinion, that the judgment below ought to be reversed.

Judgment reversed.