Ainsworth v. Sessions

1 Root 175

Opinion

By the Court.

Although the objection in the plea is conclusive in all cases where it applies; but where a party is deprived of his most material evidence by some unaccountable •cause, as by being panic struck, or by a paralytic shock, or other affection which for that time, has deranged the recollection of the witness so that the party loses the benefit of his testimony; this appealing clearly to be the case, reason and justice require that the party should be relieved against such a misfortune, by a new trial, as much as when he is deprived of his evidence by sickness or absence; but in such cases the court ought to be extremely cautious, that they be not imposed upon; this case was afterwards heard upon the merits, and a new trial granted.