| Ill. | Nov 15, 1861
The plaintiff in error complains, that his motion for a continuance was overruled. The feature that distinguishes this case from that of Day v. Gelston, 22 Ill. 102" date_filed="1859-04-15" court="Ill." case_name="Day v. Gelston">22 Ill. 102, is, that here the witness told the party, that he was subpoenaed by the opposite party, as a witness in the same cause; while in that case, the witness merely promised to attend without a subpoena. We there held that if a party would rely upon the promise of the witness to attend, he must run the hazard of having the promise violated. Nor is this case any better for the-party complaining. He had no right to appropriate the diligence used by the opposite party, to his own use. He knew that his adversary had a right to tell the witness that he need not attend in obedience to the subpoena, and thus relieve him. from his obligation to obey it. Indeed, he might well expect if the party who subpoenaed the witness found his opponent wanted him upon the trial, that he would relieve him from the trouble of attending.
The judgment is affirmed.
Judgment affirmed.