
    Goode v. Love’s Adm’rs.
    December, 1833.
    New Trial — When Not Granted. — A new trial ought never to be granted, where it appears that the party asking it, has had a fair trial on the real merits of the case, and that justice has been done.
    Debt, in the circuit superiour court of Mecklenburg, brought in March 1832, by Dove’s administrators against Goode, on a bond of Goode to Bruce & Sydnor, assigned *to Dove in his lifetime. Goode pleaded, 1. payment; and 2. that, in a previous action of assumpsit, in the former circuit court of Mecklenburg, brought in January 1829, by Goode against Dove’s administrators, the debt due by the bond on which this action was brought, had been set oft by them, and that the same was allowed and discounted from Goode’s just demand in that action. And on these pleas, issues were made up.
    At the trial, the jury found a verdict for the plaintiffs, and judgment was entered for them accordingly. But the next day, the counsel for Goode, he being absent, moved the court to set aside the judgment and verdict, and to direct a new trial on two grounds, 1. that he had been improperly ruled into trial, in the absence of his witnesses, and 2. that the court had misdirected the jury. The court overruled the .motion; and Goode’s counsel filed exceptions to the opinion.
    1. It appeared from the bill of exceptions, that when the dause was called for trial the day befo'e, Goode being absent, his counsel had asked a continuance, alleging that there were several witnesses for the defendant whom he believed to be material, who were then absent, though they had been in attendance during every former day of the term, and he imputed their absence then, to the weather which was very rainy; but the court refused the continuance, saying, that the defence of the defendant could be proved by the officers of the court, or the counsel in attendance.
    2. It appeared, that the court had instructed the jury at the trial, that the only question it had to decide, was, whether the jury who tried the action of assumpsit of Goode against Love’s administrators, had allowed the bond on which this action was brought, as a set off against Goode’s demand in that action. The record of Goode’s action against Love’s administrators, was exhibited; which shewed, that the only plea pleaded by Love’s administrators in that action, was the plea of the statute of limitations; though it x'also appeared, that in September 1829, the bond on which this action was brought, was by leave of court, filed as a set off in that. Goode’s counsel alleged, that the court had, in its direction to the jury, in-tirely overlooked the issue on the plea of payment, to which the testimony of the absent witnesses applied: and he offered an affidavit, that he had been misled by what had fallen from the court, in overruling the motion for a continuance, and supposed that the defendant would not be allowed to adduce evidence on the plea of payment; and that in consequence of this, he had forborne to call a witness, actually in attendance at the trial, whose evidence related to the plea of payment. But the court overruled the motion for the new trial, because there was no evidence of the materiality of the witnesses who were said to have been absent, or of the witness said to have been in attendance, and because both the counsel for the plaintiff and for the defendant, had stated, in their opening to the jury, that the defence rested on the second plea.
    Upon the petition of Goode, a supersedeas to the judgment was allowed by a judge of this court.
    The cause was argued here by the attorney general for the plaintiff in error, and Leigh for the defendant, upon the following objections taken by the former: 1. That the court had erred in refusing the continuance asked on the ground of the absence of witnesses, whom Goode’s counsel believed to be material, Goode himself not being present to make affidavit of their materiality, and his absence being fairly imputable to the same cause, which probably prevented the witnesses from attending, namely, the inclemency of the weather. 2. That the ground on which the court refused the continuance, shewed, that it overlooked the issue on the plea of payment, and supposed the only issue to be that made up on the second plea; which was well calculated to mislead Goode’s counsel, as he was ready to make affidavit that he was misled, into a belief, that no evidence was to be received on the plea of payment; and this also '’'"explained why he had rested the defence at the trial, on the second plea. 3. That the court misdirected the jury, in telling them that the only question to be decided, was that presented by the issue on the second plea. And that, upon the whole, it was apparent, that the court, the counsel, and the jury had wholly overlooked the issue on the plea of payment.
    
      
      See the principal case cited in Steptoe v. Flood, 31 Gratt. 342; foot-note to Patteson v. Ford, 2 Gratt. 18, containing- extract from Steptoe v. Flood, 31 Gratt. 342; foot-note to Bell v. Alexander, 21 Gratt. 1.
      See generally, monographic note on “New Trials” appended to Boswell v. Jones, 1 Wash. 322.
    
   TUCKER, P.

The court having overruled the motion for a continuance saying, “that the defendant’s defence could be proved by the officers of the court or by the counsel in attendance,” we are left to infer, from the facts stated in the exception, that both Goode and his witnesses were prevented from attending by the inclemency of the weather. And if there was nothing more in the case, I should think the continuance ought to have been granted: for, if the weather was so inclement as to excuse the absence both of party and witnesses, no affidavit of materiality from the party, could reasonably have been expected.

But it appears, that the real defence was upon the second plea. It is impossible that Goode could have designed to defend himself, both by proving that the debt had been discounted in the former suit, and.that he had also paid it in some other manner. And it is expressly stated in the bill of exceptions that his counsel rested his defence upon the second plea only. Now, as to this second plea, he could not have been permitted to introduce any oral testimony, to prove that the bond had been set oft by the jury in Goode’s action against Love’s administrators: because in the record of that case, it appears the parties went to trial upon one plea only, and that was the plea of the statute of limitations. Under the plea of the statute of limitations, the set off in question could never have been introduced ; and had testimony been offered to prove that it had been, I think that testimony should have been rejected. Hence it is clear, that Goode sustained no injury in being ruled into trial upon his second plea.

*As to the plea of payment, the bill of exceptions shews, that Goode rested his defence upon the other plea; and, therefore, we cannot suppose that the absent witnesses were necessary to the support of this. Indeed, it is clear, that he has had a fair trial of the very matter on which he relied as protecting him from the plaintiff’s claim; and as this is a motion for a new trial, it ought not to be granted since it seems that justice has been done.

If, indeed, we were permitted to draw inferences as to the fact of payment from the record, I should say it is clear Goode has not paid the debt. As late as September 1829, it was filed as a set off in his suit against Love’s administrators. This suit is brought against him in March 1832. He pleads here, that the bond had been set off and discounted in the former suit. Can we believe, that, after the bond had been, as he supposed at least, discounted in the former suit, he would have paid it? I think not, and therefore I feel assured, that no injustice has been done him by the verdict. That being so, a new trial ought not to be granted.

The judgment is to be affirmed.  