Holsenback v. Martin

By the Court.

Lumpkin, J,,

delivering the opinion.

It is not denied by the plaintiff that the affidavit in this case was defective; nor by the defendant that it was amendable. The only question is, should the court have allowed the case to have been reinstated ? Our opinion is tbat the application for this purpose should have been granted. No notice was given of tbe defendant’s intention to move to dismiss tbe appeal. Tbe counsel for tbe plaintiff could not, therefore, foresee tbe necessity of having bis client present. He announced himself ready for trial when tbe case was called.

It does not appear tbat any body would have been injured by tbe reinstatement of tbe case. Tbe defendant could not be; and if the bail was, when an attempt is made to charge him, be will be allowed to show that he was ready to surrender bis principal in discharge of bis bond, but suffered him to go at lai’ge when tbe appeal was dismissed. Perhaps he would be entitled to this privilege ; on tbe other band, it might be said tbat be is presumed to know tbe law; and tbat it was bis duty to have retained the custody and control of his principal during tbe term, if it be tbe right of tbe plaintiff to move to reinstate at any time within tbe term. We do not decide this point. It may never occur.

Judgment reversed.