Williams v. Brashear

delivered the opinion of the court.

We have not attended to the merits of this case, it appearing to us that the District Court erred in refusing the new trial.

The defendant being absent, his attorney made a formal affidavit, stating newly discovered evidence, which came accidentally to his knowledge since the trial, to wit: that one John Lay, is able to prove that the defendant, who is sued on a bill of exchange, at the maturity of the bill, had sufficient funds for its payment in the hands of the acceptors. The affidavit contains all the averments requisite to sustain an application for a new trial, in a case like the present.. If there .ever was any doubt that, in the absence of the client, the attorney who conducts the suit may make his affidavit of facts immediately in his own knowledge, that doubt has *80been removed by an act of the legislature, approved March 20l.h, 1839, section, 16 ; which provides “that in all cases where by any provision of the Code [of Practice] an oath of a Party’s required, it may (in (he absence of the party) be made by his agent or attorney; and in such case it shall be sufficient for the agent or attorney to swear to the best of his knowledge and belief.”

The law never requires what is impossible. A motion for a new trial must be made within three days after the rendi^011 l^e judgment. If the party be absent, he must be without remedy, if the affidavit of evidence discovered within ,, , . , , , . these three days cannot be made by his agent or attorney wb° made the discovery. Necessity justifies whatever it commands. He who has been convicted of perjury may , „ . , . . make (he affidavit necessary to obtain a continuance, new tr'a^ or injunction, in his own case, so much does the law abhor a failure of justice,

It is, therefore, ordered, adjudged and decreed, that, the judgment of the District Court be annulled, avoided and reversed, and the case remanded for a new trial; the plaintiff and appellee paying the costs of appeal.