
    FREEMAN FORD vs. CELIA FORD.
    Where a complainant, in a bill for a new trial at law, appears to have had a good defence, which he was prevented from making, or, moving for a continuance, or new trial, by accident unmixed with negligence, a new trial will be decreed.
    BRIEF OF HESSES. WEBBER, AND MARSH.
    The bill prays for a new trial at law, oh the ground that the verdict is unjust and oppressive, and - that his defence was not there made, because of an accident to the horse of the attorney substituted for the attorney first/ by the complainant employed.
    In order to set aside a verdict on bill for thatpurpose, there must he injustice in the verdict, concurring with fraud in the complainant at law accident or mistake.
    Dodge, et al. vs. Strong, 2 J. C. R., 230.
    Foster and Wood, 6 J. C. Réports, 90.
    1 Sch. & Lefroy’s Rep. Bateman vs. Wilde.
    3 Bibb’s Reports, page 80.
    The verdict is not unjust, because, from plaintiff’s own showing, hisde-fence was in the nature of an offset, and none being filed, nor pleaded, he has the same right of action for hire,' as he would have had, before the trial.
    The accident alleged is futile* a corn on the toe, or any other serious injury to his attorney, would be an equally sufficient accident to reverse the finding of a jury, and the judgment of a court.
    It is further contended that the bill, and will, (a part thereof,) shows that the slave Simon belonged to Selah Ford, and his services were enjoyed by the defendant at law, Freeman Ford* This fact authorized a recovery for Aire, also the small negroos belonging to Freeman Ford, were in the possession of Selah Ford; they being too small to be of any service, but an expense* authorized a recovery for raising them, so that the jury was hound to assess damages upon every item of the account. This court cannot, therefore, conclude that the verdict is unjust, wiithout usurping the province of a jury, in assessing damages, and that, too, without evidence to form a criterion of such assessment.
    Again: If the verdict was cleariy unjust, it could not be set aside by a bill in chancery for a new trial, unless the defendant was prevented from making his defence, by the fraud of the plaintiff, (which is not pretended in this case,) or by unavoidable accident, unmixed with blame or negligence on his part.
    In the present case, the defendant at law does not account for his absence, or in any manner show that his absence was at all necessary: an important suit was depending against him, and at the previous term, he procured a continuance upon his affidavit; (see record filed as exhibit.)— It is, then, clear that he deemed the suit an important one; andifhechose to rest his case entirely with his counsel, he must abide by such choice;— ■otherwise, defendants may voluntarily absent themselves from the state, or rim away, and thereby delay creditors in the prosecution of their claims. It is either a voluntary abandonment of his defence, or laches.
    First, then, the appellant, defendant at law, was guilty of negligence in not preparing his defence, and in not filing an account of offset, (if such defence existed.) See act of Assembly, revised code, page 118, section 61, and
    Second — He was guilty of neglect, in not attending court and preparing his defence, by procuring the attendance of his witnesses, and seeing that they attended, as his presence, and not that of his attorney, was necessary to procure a continuance, (if necessary,) and is but ordinary and usual attention 5 see act of Assembly.
    Third — It is the mere privilege of the party to appear by counsel, and it does not exempt him from the chai ge of neglect. The neglect of the attorney is the neglect of the party, and a new trial will not be granted for that cause; 3 Bibb’sRep., page 80.
    Fourth— Courts of equity will not grant a new trial unless the. verdict is unjust in toto, and obtained by fraud, the act of the adverse party, or unavoidable accident, unmixed with fault or blame, on the party applying; 6 Johnson, 89.
    See 6 Johnson’s Chancery Reports, page 90; 6 do., 479; 4 do., 566 ■■ 3 do., 351; 2 do.,230; 1 do., 320.
   OPINION OF THE COURT — by the

Hon. Chief Justice TURNER

Two grounds are laid by the complainant, Freeman Ford, in his bill, by which he seeks a new trial at law:

1. That the verdict at law, obtained against him by Celia Ford, is fraudulent, unjust and oppressive.

2. That the complainant was prevented from making his defence at law, by accident, unmixed with negligence.

The account filed is novel, on its face. It is very unusual to see a suit on an account for boarding slaves. They are generally considered an article of profit to the owner.

The item for negro hire is also a singular one. It would seem that Mrs. Ford hired to Freeman Ford a valuable negro man, for about nine years in succession, and no credit given for any part of the hire.

S. M. Grayson, Esqr., solicitor for 'complainant;

,G. W. Smyth, R. W. Webber, and S. B. Marsh, Esqrs., for defendant.

How these things may turn out, on a trial before a jury, we know noh' When the jury shall hear the witnesses on both sides, they will be able to decide between the parties.

We think the complainant is entitled to a new trial at law, inasmuch as ■it appears to the court, that he has not been heard on the former trial; that ■he has a good defence, and was prevented from making it, and from moving for a new trial, by accident, being absent from the state at the time, ■and his counsel likewise; that he did not know of the absence of his counsel, until after the judgment at law, and his attorney testifies that he was prevented from getting to court, inconsequence of the ice in the Ohio river, he having gone on business from the state, with the intention of returning and attending the trial of this cause.

The decree of the chancellor is affirmed.

Judges Nicholson, Montgomery, Smith and Huston concur.  