Opinion
SEPTEMBER TERM, 1785.
THESE causes were marked for trial this day. Lewis for the defendant tendered the affidavit of Mason, the defendant in the first action, of the absence of a material witness. Bradford, for the plaintiff, desired, on the authority of the Chev. D. Eon's case 3 Burr. 1514, that the Court would enquire what would be the testimony of the absent witness, in order that it might appear whether he was really material.
But this THE COURT refused, and ordered the cause to be continued.
Bradford then moved, that the action against Keely should be tried; insisting that the affidavit of any person, but the defendant himself, was insufficient to delay a trial; and he cited Barn. 437. Carter vs Uppington and Gray vs Holton.
But it appearing to THE COURT, that both actions were brought on one note of hand, in which Mason was the drawer, and Keely the indorser, and, consequently, that Mason was liable over to Keely, he was considered as eventually interested in both actions; and therefore both the trials were postponed on his affidavit alone.