Green v. Angel — 13 Johns. 469

Majority

p. 469

Green against Angel.

Headnote

mere a justice Símpente!! had been com-hours, in order to allow one of the parties to produce further proof, u was

^ameberJn ?¿U8b“ng“omI “fended resumed the Sot Appear”™ ¡s anee, and the justice cannot proceed nlty the trial»

IN ERROR, on certiorari to a justice’s court.

In the course of the- trial in the-court below, while the defendant in error, who was also defendant in the court below, was proceeding with his testimony to substantiate his plea of set-off, ... .1.1 . the justice decided, that in order to sustain his plea, it was . necessary tor him to show a mdgment and execution before another justice. The defendant then requested a delay in the trial, until he could go 12 miles to procure the evidence required. To this the plaintiff objected, but the justice said that he would keep the court open, and allow the defendant 20 hours to go and obtain the testimony. At the time appointed for resuming the trial, the plaintiff did not appear, but the justice proceeded ex parte, and heard the defendant’s proof of set-off, and rendered judgment, for a balance, in favour of the defendant. J ° ' .....

The judgment must be reversed, on two grounds :

It was an abuse of discretion in the justice to allow such an

p. 470

unreasonable time. for the defendant to go abroad for évidence during the trial* 2. Thé non-appearance of the plaintiff,. 'When the trial was.-resiimed, was a discontinuance of the suit,, and the" justice had no right to. proceed any further.

Judgment reversed.'.,