Opinion
Spring Sessions, 1854.
CAPIAS CASE to November term, 1853.
Rogers, for plaintiff.
J. A. Bayard and Bradford, for defendants.
At the May term, 1854, the case came up for trial; and,
Mr. Rogers, for the plaintiff, moved a continuance, founded on an affidavit that the, plaintiff had been unable to discover certain papers material to the case, and which he hoped to procure by the next term.
The continuance was opposed by Messrs. Bradford and J. A. Bayard, for the defendants, who contended that a lawful ground for the continuance had not been laid. They insisted that the papers should be specified, in order that they might know not only their materiality, but ascertain what diligence had been used to procure them; that they might produce them if in their power, or that the affiant might be subjected to criminal liability in case he swears falsely. They said, by reference to the practice in continuing causes for inability to procure the attendance of witnesses, it was constantly required that the names of the witnesses should be disclosed; and, under circumstances, that the matters to be proved by the witnesses shall be disclosed.
The Court refused the continuance, unless the papers were specified. This was necessary, in order to test the amount of diligence used in discovering them.
The case was afterwards continued.