‘ Crneorr Coeur, Penryylvuia Diltriél. 383
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Suns': Lellee wrjiu Ixvme. szvsl T HE Defendants Counfel moved to put oll·` the trial of F this caufe (which was marked for the 20th of April} upon an allidavit letting forth, •¢ that A. B. a material witnefs, who lived at Carlrfe, in Pcm$I·r:auiu, (at a dillarzee of more - than roo miles from Philadelphia) was abfent; and that he had been lick fome time ago, but had promifed the Defendant to attend at the trial.” ' Lee, Irger/all, and Rawls objeéled to the poliponement, be- caufe it was in the Defendant’s power, by virtue of the A& of Congrefs (1 VoL S·wy"t’.r Edit. p. 68. go) to have taken the depolition of the wituefs de bene Nor is it fullicient in every cafe to make a formal affidavit; the Court will enquire fo far into the teftimony, which the witnefs could [give, as to fatisfy themfelves, that the reafon alligned for a po ponement is not merely colorable ; and if the faéls, in the prefent iniiance, are material, there can be no injury from allowing the court to hear and decide on them. There can be lefs occalion, likewife, for indulging fuch motions in eje€tments, than other fuits, as the judgment is not conclulive. E. Yiglaman and Lvwir, in fupport of the motion, {rated, that the eaufe had never yet been put off at the requefi of the Defendant; and they urged the fuperior importance of oiwi wr: teilimony, as a fuilicicnt reafon for declining to take the depolition of the witnefs de bene yi, under the _A€t of Congrefs; whofe provilions, in this refpeét, indeed, they regarded as ah- horrent to the principles of natural “u{lice. _ Prsrerts, _7q]}ir:. If any delay had heretofore occurred by the Defendant’s conduct, I {hould have been difpofed to have held him, llriétly, to the performance of every thing, by which it was in his power to procure the teltimony of the witnefs. The Aét of Congrefs, however, appears to be rather harfh; and if no excufe, like the prefent, could be admitted. it would be declaring, in eifeft, that whenever witneifes relided more than roo miles from the court, their depolitions mult be, indif- pcnfably, taken. . · · Iruznrrn., _7:_¢'ir·e. It is not a fullicient reafon for forcing . _» _ this eaufe to a trial, iu. the abfence of a material witnefs, that the ACI: of Congrefs authorifed his depolition to be taken. Courts of jultice have alwa s been delirous to obtain vim! vm tcllimony, where it was praéiieable ; and even the plaintiff him- {elf has given a proof of his fenfe of its fuperior eitimation, by bringin his witnelles for this very trial from Ritlmmnd in Vir- ginia, gxough he was equally entitled to take their dcponzions. . _ T ;¢
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