Echeveria v. Nairac

TILGHMAN, Chief Judge. This is the second term after issue joined. The defendant’s notice of a defence which was not expected, and which induced on the part of the plaintiff the necessity of a commission to La Vera Cruz, was given during October term last. It was certainly, very strict practice for the defendant to take a rule for trial or non pros, the very term he gave this notice; and had the plaintiffs resisted the rule under those circumstances, it might have been refused: but it was obtained as a matter of course, and we must dispose of it on proper principles. We are of opinion, on the whole of the circumstances, that the causes should be continued. No affected delay appears on the part of the plaintiffs: on the contrary, a very great anxiety to get the evidence from La Vera Cruz, by sending Mr. Ferrer by land with duplicate commissions to effect it. It _ was certainly a great while to keep the commission from October to January; but this is in some measure accounted for from press of courts, and the very elaborate translations, &c. necessary to attend the commission. Besides, it does appear that a return of it might be looked for from the course of the voyage, though sent in January. It is true the explanation and offer now made, removes the necessity of this evidence; but then Ferrer, the principal witness as to the individual transaction to be tried, is gone in consequence of the notice of the 18th of October, 1800, which brought into view a different defence. To compel Echeveria to proceed without him, would, possibly, be more injurious, than to have gone on without the commission, had that evidence been material. We are desirous of despatch, and will not easily overlook laches; but in this case we think there is sufficient ground for continuing the causes. Let a continuance be entered.