The brief of plaintiff in error insists upon the first two only of the four grounds of alleged error set forth in the record.
As to the first, it is only necessary to say that however good a defense a party may have to a suit, it is worth nothing if by his own laches he permits the proper time for pleading it to pass without availing himself of it.
1. A continuance will be granted on account of the absence of leading counsel by leave of Court: 36 Qa. 54; But when a case has gone to judgment and a new trial is moved for on the above ground, it must distinctly appear that the absent counsel was retained, and not merely “ spoken to,” by the client, or by his authority express or implied. If the counsel is unable to swear that he was retained in the case, and his partner, who was such, at the time of the alleged retainer was present when the case was called and stated that he knew of no defense, and it also appears that there is no counsel of record, no plea filed, a judgment by default unopened, it would be but holding out a premium to negligence and a ¡great injustice to the adverse litigant, to grant a new trial under such circumstances. The affidavit of Mr. Simmons shows that he would have attended to the case had Mr. Hoyle’s name been marked on the docket for defendant. It is hardly probable that Mr. Hoyle would have failed to have his name entered for defendant at -the first term, or between that and the term at which the case was disposed of, had he *547considered himself retained. At all events, upon the assumption that he was retained, here was negligence for which the opposite party cannot be held responsible, and should not be made to suffer, especially when taken in connection with the other circumstances of the case.
Judgment affirmed.