
    DAVIS adsm. WINANTS.
    In Case. Motion for rule to show cause &c.
    
    The Court will not grant a rule to show cause why the verdict should not be set aside &o. simply, because the defendant was not in attendance with his witnesses, by reason of his attorney having told him, he would be in time if he was in court the second day of the term. Especially, if his affidavit does not disclose facts which he expected to prove by his witnesses, which if true, would have constituted a clear and absolute bar to the plaintiff’s recovery.
    This cause was regularly called on for trial in the afternoon of the first day of the last Essex Circuit. The counsel for the defendant stated, that he was not prepared for trial: that his client had not arrived, nor were his witnesses attending: but the plaintiff refusing to let the cause be passed, and the defendant laying no ground before the court for a postponement, it was ordered on and tried. The counsel for the defendant took part in the trial and cross examined the .witnesses. The evidence being closed on both sides it was agreed, that the cause should be submitted to the jury without argument, subject to the charge of the Court. The usual hour of adjournment having arrived, the court adjourned until the next morning. Upon the opening of the court the next morning, the jury being at the bar, the judge was about to deliver his charge, when the defendant’s counsel stated, that his client had been informed by bis attorney, that it would be in time, if he was in court that morning : that he had now arrived, and was present with his witnesses, and prayed permission to call and examine them. It was objected by the plaintiff, that the cause had been rested on both sides, and his witnesses had left the court. The judge thereupon inquired of defendant’s counsel, what he expected to prove ; and after a statement by counsel in answer to that inquiry, the judge being of opinion, that the evidence proposed to be given was only cumulative to what had already appeared on the cross examination of the plaintiff’s witnesses, and would not alter the case as it then stood before the jury: refused to go into a further examination of witnesses, and proceeded to charge the jury. The jury rendered a verdict for the plaintiff: and now upon an affidavit, the tenor of which will be stated in the opinion of the court, D. A. Hayes, of counsel for the defendant, moved for a rule to show cause why the verdict should not be set aside and a new trial granted.
    
      A. Whitehead for the plaintiff, contra.
   Opinion of the Court, by

Hobnbloweb, C. J.

When the cause came on for trial again, the facts and circumstances occurred which are stated in the recital preceding this opinion. The defendant’s counsel, now moves for a rule to show cause, &c. upon an affidavit stating, that he resides in Morris county: that about a week before the Circuit, he received a letter from his attorney informing him, that the cause was noticed for trial: that he immediately went to see his attorney and prepare for trial s that his attorney told him it would be time euougb if he was in court on Wednesday morning: that he arrived, in company with a witness from Warren, in Newark, on Tuesday evening, and then heard that the cause had been tried : “ that he had several witnesses in Newark alsothat he had had no conference with his counsel since the first trial. Thus far the affidavit discloses nothing but an incurable negligence on the part of the defendant, to attend to his cause, and prepare himself for trial: except so far as he may have been misled by the advice of his attorney. But the affidavit proceeds to state, that he is advised by his counsel and verily believes, that he has a “just, good and valid defence;” that he resided in Newark with his family, until a short time before the note became due; that he removed to Danville in Warren county; that it was well known in Newark, where he had moved to; that the maker of the note had a family and kept house in Newark, when the note became dife, and had at that time no connection with the store, where payment had been demanded ; and finally that if defendant had had due notice of non-payment, he could have scoured the amount from the maker; as at that time he had money in his hands belonging to the maker of the note, and which he afterwards paid to him.”

Had this affidavit been put in at the Circuit, I should have opened the cause and let in the evidence. But no such affidavit was offered, nor any such statement made. The court were only told, that the witnesses would prove, that defendant had in fact removed from Newark to Danville and not to Hope, to which place the notice had been directed ; and that he could prove, that it was well known in Newark, where he had removed to. That the Defendant had removed to Danville and not to Hope, was already in evidence. It came out on the examination of the plaintiff’s witnesses, and was not denied by the plaintiff. But where the defendant actually resided, when the note became due, was not the question. It was, whether the plaintiff by his agent or notary, or the notary’s clerk, had used due diligence. Whether he had made such efforts and inquiries to find out the defendant’s residence, as were reasonable, and as would amount to due 'diligence. This question was distinctly submitted to the j urv, in such a manner and with such instructions, as were satisfactory to the parties; as no exceptions were taken to the charge. The fact, therefore, that it was well known in Newark, where the defendant had gone to reside, could not alter the case. Suppose it was well known to Johnson and a dozen other persons or more, that defendant had gone to Danville, yet if the notary made diligent search and inquiry, and could not find out where he had gone, and the jury were satisfied of that, their verdict must have been the same. The notary, it is true, did not inquire at the house where defendant had lived in Newark; but the present occupants of city houses, are less likely to know who the prior tenants were or where they have gone to, than those with whom they used to do business. The notary’s omission to inquire there, or, that he happened not to inquire of the only person or persons, who did know where defendant had gone, is certainly not fatal to the plaintiff’s recovery: and for this reason, that the plaintiff or the notary did not know who could tell him where defendant had gone. All this notoriety, however, might have been proved on the first trial. The defendant was then prepared, or ought to have been; but it was not done; and what is more remarkable, no pretence was then set up, nor any evidence offered to show, that the defendant had funds belonging to the maker of the note in his hands, when it became due. It is also, a remarkable fact, that although the defendant has put in this affidavit, he has not ventured to deny under oath, that he received the notice; or if he did receive it, that it was not until after he had parted with the funds in his hands.

This is very different from the ease lately decided in this court, from the Somerset Circuit. In that case the defendant’s most important and material witness resided out of the state and beyond the reach of the process of this court. He had been advised by his attorney, that the first day of the Somerset court was usually devoted to criminal business, (a fact I believe admitted,) and that it would be time enough for him to be there on Wednesday morning. There had been no previous trial; he had had no opportunity of being heard, and he disclosed facts upon his affidavit, which if true, constituted a olear and unquestionable defence, and which, owing to the mistake of his attorney, or the unusual course of the court, on that occasion, he had had no opportunity of preventing. I am therefore of opinion, the rule must be refused.

Mule refused.  