Butler v. Ambrose

McCay, Judge. 1. That a witness will sustain the plea is a very unsatisfactory statement of what he will say. The plea is that the plaintiff’s intestate had released the defendant from the pay [154] ment of the note sued on. Plow ? Where ? When ? On what consideration ? The thing stated, that he will sustain the plea is a mere'conclusion of law. Such a statement of the witness evidently ought to be made so that the court can judge that it will sustain the plea. We think there was no abuse of the discretion of the court in refusing this continuance. That the witness was a practicing physician, whilst it may not of itself be a good ground to refuse, is yet an element to be considered; the defendant could have taken his interrogatories, and is thus guilty of additional laches. 2. It would be, we think, trifling with justice to send this case back. The evidence of the witness, taken on a former trial, is part of the record, and was olfered in testimony and rejected, we think properly, by the court. From that testimony it is plain that the' witness would not have supported the plea. The release, as he states it, was a nudum pactum, and never acted upon or executed, and this very case shows the wisdom of the ruling of the judge that it is not enough to say that the witness will sustain the plea. Judgment affirmed.