
    Michael Smelser, Syndic of his own creditors v. Rebecca Williams and others.
    Where a defendant swears that his principal counsel is unable to attend, as he is informed and believes, in consequence of severe illness, and that he cannot safely go to .trial without him, he is entitled to a continuance.
    Appeal from the District Court of St. Helena, Jones, J.
   Simon, J.

This case was before us in 1843, and was remanded for anew trial.* 4 Robinson, 152. On the day fixed for the trial of the cause in the lower court, after the return of our mandate, the defendants moved for a continuance, on the ground of the absence of their principal counsel as stated in the affidavit presented, the associate counsel being also absent, and they having no counsel present. This motion was overruled, and the defendants took a bill of exceptions.

We are of opinion that the judge a quo erred, in refusing the continuance. The defendants’ affidavit shows that John P. Bullard, Esquire, was the principal counsel in the cause; that he was absent, and that, as they had been informed and verily believed, said Bullard was detained and unable to attend by severe illness; and they further swear that they cannot safely go to trial without him. It is true this affidavit makes no allusion to the absence of T. Lawson, Esquire, the defendants’ other counsel, who was not in attendance, and that no reason is assigned therein for said Lawson’s absence ; but taking the facts stated in the affidavit as true, it seems that John P. Bullard was the principal counsel entrusted with the defence of the cause, and’ that the defendants could not safely go to trial without him. Lawson’s absence may, perhaps, also be accounted for by the very reason that, not being the principal counsel, and relying upon his associate for the defence of the cause, he did not think it necessary to attend, as he was perhaps unacquainted with the circumstance which prevented Bullard from attending to the. trial. Be this as it may, wc are not prepared to say that, under the circumstances of this case, the defendants were properly forced into the trial of it in the absence of all their counsel, and particularly of the one in whom they appear to have placed most confidence ; and, as this court said in the ease of Barry v. The Louisiana Insurance Company, 12 Mart. 484, “when a counsel is really prevented by indisposition from attending, the client might suffer groat injury if the cause was pressed in the absence of the, one of his counsel, who had taken on himself the laboring oar.” See also 5 Mart. N. S. 641. Gib. 335. Here the case was tried and submitted to the court a quá on the evidence already on file. No new evidence was produced by either party, except the admission of a fact exhibited by the record ; and although this is a case of long standing, we think the sickness of the leading and principal counsel of the defendants, was a good ground for a continuance, and that justice requires it should be remanded for a new trial, in order to afford the defendants an opportunity of being represented by counsel in the defence of their rights.

Sheafe, for the plaintiff.

Winter and Lawson, for the appellants.

It is, therefore, ordered and decreed, that the judgment of the District Court be annulled and reversed, and that this cause be remanded to the lower court for a new trial; the appellee paying the costs of this appeal.  