17 F. 667 -

ANDERSON V. SCOTLAND.

667

ANDERSON V. SCOTLAND·

. (Circuit Court, D. ;b1innesota. July, 1883.)
PnACTTCE-RETTTNG ASIDE JUDGMRNT-AnSENCE OF COUNSEJ,.

The general rule is that parties and counsel will be re'1uireo to attend to their cases, uno be prepared when they are reached on the docket; but cases may occllr when, througL the absence of couns.,], if injustice is done to one party or the· other, it can be afterwards corrected; ancI if a judgment is oblained through the absence of counsel, the judgment may be set aside upon terms.

At Law. C. K. Davis and H. H. Horton, for plaintiff. Lovrly <f; 111or.ryan, for defendant. NELSON, J., (orally.) A motion is made by counsel for the defendant to set aside the verdict of the jury, which was obtained for the reason, substantially, that the counsel were taken by surprise, and that a judgment was obtained through accident or mistnke. The general rule is that parties and counsel are required to attend to their cases, and to be prepared when the cases are reached. This cnse was No. 1 on the docket. The venire was returnable on the sixth day of July, the jury was in attendance, and this case, as I said, was No.1 on the docket and could have been tried. It is true that cases sometimes occur when, throngh the absence of counsel, if inj ustice is done to one party or the other, it can be afterwards corrected; and if a judgment is obtained through the absence of counsel, the judgment may be set aside upon terms. When this case 'was reached upon the calendar, it is true, as stated by the deponent in his aflidavit, the counsel for the defendant, the presiding judge stated there would be no peremptory call of the calendar; that the justice of the supreme court of the United States, who would preside, would be in attendance on the following 1l0nday, and that no case would be peremptorily set down for trial; but that any case that could be heard by consent of counsel, or any cases of settlement of damages, or where there would not be any appearance on the part of the defendarlt, conld be disposed of then. It was said by counsel for plaintiff that there wonld be no appearance on the part of the defendant; that he had communicated with the attorneys of record for the defendant, and they had stated to him, in this language, "Go ahead." It appears that the deponent in this ease, the counsel for the defendant, although, not appearing as counsel of record, had been manag. ing the case since it was l'emoyed from the state court to this court, awl among the papers a stipulation appeared in which Messrs. O'Brien & Wilson, :Mr. O'Brien being the deponent in this case, . appeared as the attorneys for the defendant. If the court had known, or if it had been intima ted to the conrt, that the last-named counsel were to take charge of this case, and had participated in the .Il1allageJllent of the same, the case certainly would not have been

6GS

FEDERAL REPORTER.

called without the consent of counsel. At the same time the attorney for the defendant should have bee. in attendance at the term of court, prepared, when the case was reached, either to dispose of it by trial, or to move for its continuance, or to take such steps as might be required. In view of all the circumstances of the case, I think terms should be imposed upon counsel, and the verdict set aside. The verdict, will be set aside on payment of the taxable costs of the term.

BARTLETT

and others v.

June Term, 1883.)

(Circuit Oourt, D. Minnesota.

CO)IPnO)rTSE AS CONSIDERATION FOR DEED-SUIT FOR BREACH OF CmiTRACTEVIDEXCE.

1. engages in option deals with 3., and loses a certain sum of money therein. A. refuses to pay E., alleging it to be a gamhling contract. Snit is brought thereon by E., and the jury find a verdict in favor of A. E. then takes the necessary steps to appeal the casc to the United btatcs supreme court. Pending such appeal, A. otIers to settle the case and to give B. a certain quantity of land, on condition that uo further steps are taken to appe1:<\ the case. A. thereupon deeds to E. certain land, making certain representations as to its quality. and B.. without seeing the land, gives to A. an instrument settling the case and agreeing to proceed no further therewith. B. afterwards, on seeing the land, declares the same to he worthless, sues A. for breach of contract, and recovers a verdict. Iltld, that evidence as to the consideration of the indebted. ness upon ,vhieh the first suit was brought is inadmis,ihle, and that the settlement or compromise of the litigated question is a valid consideration for the conveyance of the latld.
   

At Law.

MILLER, Justice, (cTulrging jury.) case before you is not a very complicated one, and I hope you will have very little difficulty in arriving o.t a speedy and ootisfactory conclusion about it. It is a very ordinary action for false representations in regard to a contract for a sale of property. Whether too representations were made or not, and whether they were false or not, is for you to detern1ine. I will lay down some of the propositions of law that are applicable to such a case, which ille long experience of courts has found to be universal in determining eases of this character. The first thmg I bave to say to you is that this transaction between these parties, in which the land was conveyed by the defendant to the plaintiff, stands about the same as if it had been bought and paid for at the time. Not that it stands as if it was paid for by $8,000 in money, but as if it was bought for any agreed sum that would be settled on. This settlement and compromise of a litigated question or of matters in litigation which have not been finished or ended is a valid consideration for the conveyance of the land; and it is immaterial in that view whether the defendant had actually a good