Opinion
September 1804.
A continuance will be granted a party who appears to have used reasonable exertions to obtain his evidence, and who states that he expects to be prepared at the next term.
Or application for a continuance, the Court will notice the distance between the place of trial, and the place whence the evidence is to be obtained.
SCOTT, for defendant, moved for a continuance on an affidavit, which stated that the defendant made application to the County Court of Hawkins, for an alteration of his grant agreeably to an act of the State of Tennessee, entitled "An act making provision for mistakes in surveys of land" 1796, ch. 20, which was allowed. This act directs that the alteration should be certified to the Secretary of North Carolina. The affidavit also stated, that the defendant went to Raleigh in January last, in order to get the alteration made, but the secretary being sick, he could not get it done, and that he could not safely come to trial without the benefit of the alteration. For the plaintiff it was insisted, that it could not be continued, because the defendant had not shown, that he used due exertions to get the alteration made, since January last; and that it had once before been continued, as on affidavit of the defendant.
[ S. C., infra, 101.]
This case falls without the ordinary rules of continuances. The Court will take notice of the great distance of Raleigh from this place. The defendant states that upon application he could not obtain the alteration, owing to the sickness of the secretary.
The design of judicial proceedings, is to do complete justice, which it appears cannot now be done in this case; and as the defendant states, that he expects to be prepared at the next term, and appears to have used reasonable exertions to obtain his evidence. Let it be continued.
NOTE. — The second point in this case seems to rule that the courts will judicially know the distance between plate. In Hite v. State, 9 Y. 381, it was held that the courts would judicially notice that towns are situated in particular counties. For other instances of facts of which the courts will take judicial cognizance, see Cooke, Appendix. — ED.