
    Beveridge, Brown et al v. John Chaudit.
    New Trial — Agreement With Attorney to Set Cause For a Certain Time.
    An affidavit of defendant that an agreement was made to set a cause for the second week of a term, and that the case was called the first week in his absence, is sufficient to justify a new trial.
    Same.
    An unexpected adjournment of the court at the end of the first week, would be no justification of a violation of the agreement.
    APPEAL FROM MARSHALL CIRCUIT COURT.
    November 23, 1869.
   Opinion of the Court by

Judge Williams:

If appellee had not agreed that the case should stand over until the second week of the circuit term, on the appeal of Brown for him to’ do so in order that he, Brown, might go to Indiana to attend some important business, he could easily have counterváiled Browns’ affidavit of this fact by his own.

Brown’s affidavit,, on motion for a new trial, to this fact, must be taken as true in the absence of any countervailing affidavit of Chaudit, or other person, and on this fact alone entitled him to a new trial, inasmuch as the trial was had the first week of the term, and in Browns’ absence.

The unexpected adjournment of the term at the end of the first week was no justification of the violation of this agreement, and though this motion was made on Saturday of the first week, the last day the court would sit at that term, it should have prevailed.

Husbands, for appellants.

Palmer & Gilbert, for appellee.

Judgment reversed for a new trial.  