McLane v. Harris

M’Girk, C. J., delivered the opinion of the Court. This was an action of slander, brought by Harris, against McLane; verdict and judgment for the plaintiff, in the Circuit Court j to reverse which, the cause is-brought to this Court. The error complained of appears by a bill of exceptions, and is, that the Court refused to continue the cause, and compelled the defendant to go to trial, when, by law, he was entitled to a continuance. The ground laid for a continuance, is, that in the fall of the year 1825, the plaintiff went to North Carolina, to take testimony in this case; that then he, for the first time,, learned, that one Jameson, (whom he swears was a material witness for him,. and that he cannot prove the same facts by any other witness, and that he cannot safely go to trial, without his evidence and his testimony can he had at the next term of the Court,) resided in Pike county, in the State of Missouri, about 170 miles from the place of trial; that he gave due notice of the time and place of talcing the testimony of said witness, and proceeded on his journey to take said testimony; and that, when he came to a certain river, the river Missouri, the ice was running so thick that he could not cross and proceed on his journey ; that the notice to take said testimony was the 22d February, 1825 ; that he remained at that river till the 19th of that month, and was then informed, by those acquainted with said river, that it was not likely he could cross said river in time to arrive at the place to take said evidence; that the distance from said river to the place of taking the evidence, was about three days’ ride; whereupon he returned home, without prosecuting his journey any further: the trial took place early in March, 1826. This Court think the defendant used reasonable diligence to. get this evidence, and the cause ought to have been continued. The judgment is reversed, with costs, and the cause sent back for a new trial.