Fisher v. Nyce

The opinion of the court was delivered, by Sharswood, J. — The ground on which we are asked to reverse these proceedings is, that the aldermen refused to grant the defendant a continuance or even a delay of thirty minutes to procure the attendance of a witness to contradict one who was examined before them. The principle on which the courts proceed on certiorari, in cases of this nature, is very well stated by Judge King, in Knight v. Parry, 1 Ashmead 221: “ If from the [109] whole facts a fair presumption arises that the justice boná fide refused to grant the continuance prayed for, because he believed the party was guilty of laches, or because he believed it merely colorable, and for the purpose of vexatious delay, the court will not and ought not to be astute to impute bad motives to him.” The aldermen in this case might with great reason consider that the defendant had been guilty of laches. He had taken out no subpoena, though he knew that the witness would testify as he desired, and he was within his reach. He alleges that he was taken by surprise by the testimony of the plaintiff’s witness ; but what right had he to be surprised ? The question when the lease terminated was material. It was the very gist of the contest. The plaintiff alleged in his complaint that it was on the 1st of April. The defendant could expect nothing else but that he would attempt to prove it. He was bound, therefore, to take measures to have his witness present to disprove it. If he came there in the vain confidence that the plaintiff would not be able to make out his case, he must bear the consequences of his mistake. He had no right to require that the course of justice should stop thirty minutes, or five minutes, to enable him to retrieve his error. We never hear parol evidence as to the merits of the case, but only of what occurred before the aldermen, as was settled in Buckmyer v. Dubs, 5 Binn. 29. Judgment affirmed.