Opinion
Fall Sessions, 1842.
J. A. Bayard, for plaintiff.
Wales, for defendant.
Mr. Wales, for the defendant, moved a continuance of this cause on the ground (supported by the defendant's affidavit,) of the absence of a material witness. The witness lived in Philadelphia, and had promised defendant to attend at this term; and defendant had written for him several times.
The continuance was opposed.
The Court. — If the matter is put to the court on the ground of legal diligence, we must refuse the application for a continuance. The defendant was bound to take out his commission under which the deposition of this witness could have been taken. If he chose to trust the promise of the witness and neglect taking a commission, it must he at his own risk. So if a party should trust to the promise of a resident witness without taking out subpoena.
The motion was refused.