Ruggles v. Hall

14 Johns. 112

• Court: New York Supreme Court
• Decided: January 15, 1817
• Status: Published

Opinion

Per Curiam.

This is a motion to set aside a verdict obtained at the last Ontario circuit, on the ground that Samuel Hildreth, a witness subpoenaed, and who had been attending ;on the part of the defendant, unexpectedly absented himself about the time the cause was called on to trial," his absence not being known until after the jury was called. The affidavit of the witness accompanies this application, and shows very clearly the materiality of his testimony. There are some affidavits which state declarations of his, somewhat at variance with this affidavit. It is to be observed, however, that these were declarations not made under oath; besides, the witness has had no opportunity of explaining them, which, perhaps, he maybe able to do upon the trial. At all events, it will be a question of credibility for the jury. The witness is insolvent, and unable to respond in damages, and, unless the defendant can be let in to a new trial; he is without redress. The persons to whom the payment was made, upon the note in question, are also insolvent, and no remedy is to be had against them to recover back the money. The defendant cannot be charged with such negligence as to preclude himself on that ground. Knowing that the witness had been attending for several days, the defendant bad good reason to believe he was still there, and his suddenly absenting himself was matter of surprise. A new trial must be granted on payment of costs.

New trial granted

(a)

Vide, Alexander v. Baron, (2 Johns. Cas, 318 )