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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 *Page 496 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.
Document Info
Citation Numbers: 3 Del. 495
Filed Date: 7/5/1842
Precedential Status: Precedential
Modified Date: 1/12/2023