
    TUNSTALL vs. BARBOUR.
    
    
      June 22nd.
    
    Orders of court which give further day to the parties, require fome urgent reafon and fub - ftantialcaufe, to jufttfy the court in fetting them afide,and trying the caufein the abfence of one party.
    
      
       Abfeni, Edwards, Ch. j.
    
   Judge Trimble,

delivered the following opinion of the court A bill of exceptions* taken by the defendant, by his counsel, in the action below, states, “ That after the cause was regularly called and continued* the attorney for the plaintiff, came into court* and moved to set aside the continuance, and try the cause ; alleging* that owing to fatigue from riding, and being indisposed, he had not been present when the cause was called ; whereupon, the court set aside the continuance, and a trial was had, in the absence of the defendant.”

Orders which give further day to the parties, especially require some urgent reason and substantial cause to be assigned for setting them aside, and giving final judgmentin the absence of one of the parties. To listen; with indulgence, to such applications, would tend to defeat the justice, of judicial proceedings, by opening an easy avenue to the procurement of decisions ex parte, by surprize, and . lying in wait. If this continuance had been by irregularity, or mistake ; or if the defendant had been in court, and could have urged nothing against rescinding the order of continuance, and going to trial, the proceeding might have been unexceptionable. The defendant had not pleaded, nor had he appeared, in-strictness ; but he had a right to appear, at any time, and plead, before the ivrit of inquiry was executed ; orto be heard in mitigation of damages. We cannot but know, that the practice is general, for the defendant to appear and make defence at the calling of the cause in court. Few issues áre made up on the rules ; because the clerk cánnot plead for the parties, without special instructions ; and the organization of the courts,, together with the course of practice in this country, renders the regular attendance of the attornies, at the rules in the office, impracticable.

Alien, for the plaintiff; Littell, for the defendant.

We. should regret to see regulations, which are intended to secure fair and impartial trials, abused, and converted to the purposes of mere delay, so nearly allied to a denial of justice : but we cannot know whether the defendant had, or had not; a serious defence. A. general rule must not be made to yield to an individual case^ which falls within no jUst exception to the rule.

It is, therefore; considered by the court, that the judgment aforesaid be reversed, set, aside, and annulled J that the cause be remanded tb the general court, there to be placed on the court docket for trial ; that the writ of ihqüiry may be executed, unless the said defendant in that court, shall, in due time, appear, and make de-fence. Which is drdered to be certified to said court. And it is further considered, that the plaintiff in this court; have, and recover of the defendant, his, the said plaintiff’s, costs in this behalf expended.  