Parrish v. Gardner

Decided July 5, 1842

Superior Court of Delaware · decided 1842-07-05

<p>moved a continuance of this cause Bn the ground (supported by the defendant’s affidavit,) of the absence ■f a material witness. The witness lived in Philadelphia, and had Bromised defendant to attend at this term; and defendant had written R>r him several times,</p> <p>The continuance was opposed.</p>

Decided 1842-07-05

The Court.

¶1 If the matter is put to the court on the ground of Ie-Bal diligence, we must refuse the application for a continuance. The Pendant was bound to take out his commission under which the *496 deposition of this witness coaid have been taken. If he chose to trust the promise of the witness and neglect taking a commission, it must be at his own risk. So if a party should trust to the promise of a resident witness without taking out subpoena.

J. A. Bayard, for plaintiff. Wales, for defendant.

¶2 The motion was refused.