
    D. Dorflinger v. George Coil.
    Equity can not grant a new trial where party seeking it has been guilty of neglect.
    This cause was adjourned from the Supreme Court of Ross county. It was a bill in chancery, praying that a new trial might be granted at law.
    The bill charged that the respondent brought an action of covenant against complainant, in the court of common pleas of Ross county. That after the service of the process, he was informed by the clerk of the court that no security for costs was given, and that there could be no trial upon that account. In consequence of which information, he did not attend to make defense. That judgment passed against him in the court of common pleas by default, of which he obtained information, and took and perfected an appeal to the Supreme Court. That he employed Judge Thompson to defend it, who advised him there could be no trial at the first term of the Supreme Court. Reposing upon this advice, he did not attend the court; and Judge Thompson, his counsel, was absent at the sitting of the Supreme Court, in his place as a member of Congress, at Washington. That judgment, by default, was rendered against him in the Supreme Court, of which he knew nothing until served with an execution. He also charges a full and complete performance of the contract upon which the suit is brought, which he could establish by proof, if a new trial were granted. He prays a new trial. The respondent demurred, and the cause was heard upon the bill and demurrer.
    Sill and Leonard, for defendant,
    cited 1 Johns. Ch. 320, 465, 466; 2 Hen. & Mun. 139; 4 Hen. & Mun. 369.
    *Bond, for complainant,
    cited 2 Tidd’s Prac. 816; Bul. N. P. 327; 2 Caine, 181; 2 Marsh. 153; 2 Salk. 645; 4 Mun. 68.
   By the Court :

The bill makes no case of either surprise or mistake, but only a case of negligence. Had the defendant attended the sitting of the court, and paid proper attention to his business, a judgment by default could not have passed against him. It is no sufficient apology for abandoning all attention to a suit in court, that counsel informed the party it could not be tried at the first term. However great the hardship, a court of equity never relieves in a case of this character.

The demurrer must be sustained, and the bill dismissed. 
      
      Note by the Editor. — See note to case of Steel et al. v. Worthington, ii. 182.
     