Honore v. Murray , 33 Ky. 31 ( 1835 )

Judge Marshall

delivered the Opinion of the Court.

Thf,re is no error in allowing interest upon the rent reserved by the covenant sued on.

But, we think the Circuit Court erred in not granting a new trial on the grounds made out in proof.

When the cause was tried, the defendant was out of the Commonwealth, his witnesses for whom he had carried subpoenas to the county of their residence, were absent, and his attorney was also prevented by sudden indisposition from being present. A substantial defence to the action is disclosed; and the evidence of the absent witnesses, as shown upon the motion, would have conduced strongly to sustain it. This was known to the attorney, and would have been stated by him as ground of continuance, had he been present. It was not certainly proved that the subpoenas were actually executed on the witnesses, or delivered to the sheriff; but the facts stated tend strongly to prove that they were executed.

Under these circumstances, we think a degree of rig- or was exercised in refusing a new trial, not required by any inflexible rule of practice, and which in this case has probably frustrated the ends of justice.

The judgment of the Circuit Court is therefore reversed, and the cause remanded for a new trial.