#### Ruggles *against*Hall.

*ALBANY,*

January, 1817.

Where a material witness had been regularly subpoenaed by the defendant, and attended at slioniy “before eafiedaUon IS witíiout ’"Thef’ comentar the toarney,°rand hi¡ discovered until lin sworni^by verdict passed fondant, the court granted a new trial, it appeanog that, as *zf*the6persons answerabieover ant^were insoi-

THIS was an application, on the part of the defendant, t© set aside a verdict taken for the plaintiff, at the *Ontario*circuit} . ***' m *July,*1816, and for a new trial, on affidavits submitted tov the. court, without argument, from which it appeared, that the action was brought upon a promissory note, held .by the plaintiff, executed by the defendant, payable to *Thaddeus Oakes,*or bearer, which was delivered *to Samuel Hildreth,*for the purpose of being negotiated in *New-Yorlc,*to enable one *Samuel Allen to*purchase merchandise : goods were, accordingly, purchased of *Smith 8- Waters,*merchants, *in New-York,*and the note delivered to them; after it fell due *A lien,*paid *Smith 8c Waters*between four and five hundred dollars, on account of the note, which left a balance due of less than one hundred dollars. *HiU dreth,*by whom the defendant expected to prove the payment, and whose affidavit was taken, in which he stated an admission made tQ j,¡m 0ne of the partners of the firm of *Smith*& *Waters*of the payment, was subpoenaed as a witness to attend on the first *Monday*of *July,*at the court house in *Canandaigua,*and attended at the court-house from day to day, until about one o’clock in the afternoon of the fourth day of *July,*when he left *Canandaigua,*and went home, without the knowledge or consent of *113either of the parties, their attorneys or counsel: it is unnecessary to state the excuses which he alleged, in his affidavit, for his departure. The cause was called on about three hours after, and the jury were sworn before the defendant’s attorney discovered that *Hildreth*was not attending, and a verdict was taken for the plaintiff, for about six hundred dollars. *Allen,*for whose use the note was made, *Smith Sr*Waters, and *Hildreth,*the witness, were insolvent, and unable to answer to the defendant for the damages which he had sustained. In the counter affidavits of the plaintiff, declarations of *Hildreth,*inconsistent with the allegations of his affidavit, were stated, but it is unnecessary to particularize them.

The case was submitted to the court without argument.

*Per Curiam.*

This is a motion to set aside a verdict obtained at the last *Ontario*circuit, on the ground that *Samuel Hildreth,*a witness subpoenaed, and who had been attending ;on the part of the defendant, unexpectedly absented himself about the time the cause was called on to trial," his absence not being known until after the jury was called. The affidavit of the witness accompanies this application, and shows very clearly the materiality of his testimony. There are some affidavits which state declarations of his, somewhat at variance with this affidavit. It is to be observed, however, that these were declarations not made under oath; besides, the witness has had no opportunity of explaining them, which, perhaps, he maybe able to do upon the trial. At all events, it will be a question of credibility for the jury. The witness is insolvent, and unable to respond in damages, and, unless the defendant can be let in to a new trial; he is without redress. The persons to whom the payment was made, upon the note in question, are also insolvent, and no remedy is to be had against them to recover back the money. The defendant cannot be charged with such negligence as to preclude himself on that ground. Knowing that the witness had been attending for several days, the defendant bad good reason to believe he was still there, and his suddenly absenting himself was matter of surprise. A new trial must be granted on payment of costs.

New trial granted(a)

(a)

*Vide, Alexander v. Baron,*(2 *Johns. Cas,*318 )