Killmer v. Crary

13 Johns. 228

Opinion

Per Curiam.

The only'question in this case is* whether the justice ought to have received the affidavit of the attorney, as to the absence and materiality of the Witnesses. This Was, .in'; Some manner,. á; matter resting in the spund discretion of the justice ; and .from the evidence returned, as to the inability of the defendant to attend the court, wq oannót say that there: was -such án abuse of this discretion as to'justify the setting aside the -judgment, it is clear ■ that .the-defendant might have attended court; The cause of his inability alleged, was a complaint in his face, arising, as the, witness at first supposed, from intoxication ; afterwards he thought it was occasioned by poison: he had but a day or two before walked ten miles. As the first adjournment was • at the request of the defendant* and, for any thing, that appears, for as long a time as he wanted in order to prepare for the trial; and as the dispensing -with the affidavit of the.party himself was a question proper for the justice, and resting in sound, discretion, we think the judgment must be affirmed.

Judgment affirmed.