Williams v. Freeland

| W. Va. | Jul 15, 1867

ÜR0WN, President.

This case involves substantially the same principles fully considered and decided in the cases of Hedges vs. Michael, Price vs. Lutman, argued at the same term, viz: the question of belligerent rights under which immunity is claimed for trespasses committed in aid of the rebellion; and the same ruling must be applied here that was there.

I think, therefore, that the pleas quashed and the pleas rejected, the latter of v'hick though more formal were not more substantial, contained no justification nor defence to the action, and were rightfully rejected by the court, though not for the reason assigned for doing it.

The motion for a continuance of the cause was also properly overruled; for to warrant a continuance the party ought not only to show due diligence to procure the attendance of the witness, but also the materiality and importance of his evidence to the issues to be tried.

To have a subpoena issued and the witness summoned and show his absence may constitute due diligence; but whether his evidence would be material if present is equally important. Nor is it excused by the absence of the party, from sickness or otherwise. For it is not to be presumed that the witness would prove the case if present, nor that the client would prove his materiality if present. The fact must be shown, and if not it cannot be taken to exist; at least, as against the other party. Once admit the doctrine of presumption, without circumstances to raise a presumption, in the place of proof, and not only would the proof he discarded, but continuances would be had continually for absences from many other causes than sickness — if not design.

In the ease at bar, suppose the party present but not willing to make oath to the materiality of the witness, or suppose he had directed the witness not to attend, or supposed the witness summoned for a show, should a continuance be granted ? Surely not; and yet if granted in this case, any or all of these things might have been true. It is true they are not to be presumed so, neither is the converse, whether for or against either party.

I think, therefore, that there is no error in the judgment to warrant its reversal by this court, but that it should be affirmed with costs and damages to the defend

Judge Maxwell concurred.

Judgment arriemed.