Bailey v. Hardy

Treat, C. J. The application for a continuance was properly denied. It was not made to appear, that the testimony of the absent witness would be material on the trial. The defendants expected to prove by the witness, that the note sued on was, prior to the commencement of the action, the property of . Turner by virtue of an assignment from the payee. This fact of itself would not constitute any defense to the action. The note may once have belonged to Turner, and still have been the property of the plaintiff when this suit was brought.. It may have been returned to the payee, and by him transferred to the plaintiff. If the makers acquired any defense to the note while it was in the hands of Turner, that could be set up in this case, they should have so alleged in the affidavit. Where testh mony is important only in connection with certain facts, those facts should be set forth or referred to, so that the materiality of the evidence may be apparent to the Court. The Court is not to presume that a .state of case may arise, that may render the testimony important; but the party himself must affirmatively show, that he cannot safely proceed with the trial without the evidence. It is not necessary to inquire whether due diligence was used to procure the attendance of the witness. The judgment is affirmed. Judgment affirmed.