Superior Court for Law and Equity, Washington District.
September 1804.
[S. C., infra, 174.]
That a witness has no property, and is about removing from one part of the State to another, is no sufficient cause for taking his deposition de bene esse; but the Court, having a discretionary power over continuances, can say, under the circumstances, that the cause shall not be continued, unless consent is given to take the deposition. [See Turley v.
Evans, 3 Hum. 322; and Code 3836, 3837.]
MILLER, for plaintiff, moved for a continuance.
WILLIAMS, for defendant, objected, and produced the affidavit of the defendant in support of the objection.
This affidavit stated that he had subpœnaed a poor woman as a witness, that she was material, was then attending court, that he was ready for trial; that the woman had declared she would not attend again; that she was about removing to the western end of the State; that having no property, he believed she did not regard the penalty for not attending as a witness, and if he did not come to trial at this term, or procure her deposition de bene esse, he should, lose the benefit of her testimony.
Per Curiam.
We cannot order a commission to take the deposition of a witness about removing from one part of the State to another; but having a discretionary power over continuances, and under the circumstances disclosed, that the witness has no property, and is about removing to the western part of the State, we can say that this cause shall not be continued unless consent be given to take the deposition de bene esse. On these terms let the cause be continued, and not otherwise — which was done.