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Saturday, February 10th, 1816.

Judge Roane

pronounced the -••lurt’s opinion, “ that ali the pleas, except the plea of “payment, are irrelevant to the claim set out in the declara- “ the appellees having failed to avail themselves of the “ condition of the bond by taking oyer thereofthe issues “ taken therefore on the said pleas are immaterial: — and it “ appearing fay the bills of exception that there was no evi- “ deuce on the plea of payment, the said judgment is erro- “ neous, — which is therefore reversed. And it is ordered that “ the verdict, and the special picas and proceedings thereon be “set aside, and the cause remanded to the said Superior Court “ of law, to be further proceeded on in the plea of payment, with “ leave to the appellees to take Over of the condition of the “ bond and plead dc novo”

January 31st, 1817, the counsel for the appellees moved the court to re instate the cause, and permit him to he heard on behalf of his clients, on the grounds, that lie had been regularly engaged as counsel for the appellees before the argument of the cause; that his name stands regularly entered on one of the dockets of the court, iu the hand wri-iog of the deputy clerk; that, iu making out the argument docket of that session for the court, the clerk had omitted to mark his appearance for his clients on that docket; and hence, on the calling of the cause, the appellees appeared to the court to be unsupported by counsel; that, at the time when the cause was called, as well as when it was decided, the counsel for the appellees was absent at Washington, under the sanction of the court, being engaged on public husiuess of importance to the commonwealth ; and that, from these accidents, in which neither his clients nor himself were in fault, they had lost the advantage of being heard fay their counsel; — but the court, not doubting the coi redness in point of fact of the grounds taken by tlic moving counsel, was nevertheless of opinion that the precedents had not gone so far as to justify it in granting the motion ; (1) and that the establishment of such a precedent might be of' dangerous consequence. — The motion was therefor» overruled.

See Beasley v. Owen, 3 H. and M. 448.

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