Lowry v. Insley

1 Del. Cas. 249

• Court: Delaware Court of Common Pleas
• Decided: November 15, 1799
• Status: Published

Opinion

Per Curiam. Booth, C. J.

It is the opinion of the Court that the cause must come on.

Wilson had plaintiff’s witnesses called, and, on two of them being absent who had been summoned, he moved to continue the cause on the usual affidavit of the guardian.

Bayard. This is a second motion for a continuance, thus [itJ should have been part of the first motion.

No second application for another ground of continuance can be admitted.

The Court afterwards said “the affidavit might be drawn, but hereafter all the objections must be made at once, or they will not be attended to.”

The affidavit was drawn and read, and not objected to [for] form or defect.

The Court then, instead of leaving the defendant to his indictment for perjury if the affidavit was false, went into an investigation of the truth of it by asking the guardian, as to his diligence, which was only that of issuing the subpoenas early in vacation.

Defendant then swore a witness that heard Stayton say yesterday he believed the cause would not come on and wished his witnesses would not attend. Which was the expectation of us all yesterday.

The Court ordered the jury to be sworn.

Wilson then directed a discontinuance of the four actions.

Bayard requested the entry to express plaintiff for costs, which was done.

• N.B. These causes and several others before and after them were ordered on for trial by the Court, although the cause of Spicer’s Lessee v. Connaway was ready for trial and stood before them; the counsel in that cause as well for plaintiff as defendant soliciting the Court to suffer the trial to proceed. That cause had presented itself yesterday as next in order, but, being a very long cause, it was agreed by counsel to defer it until this morning and try the next which was shorter and also ready. The Bar all understood, as the practice has been, that that cause was to be tried, and the other client and witnesses too had not attended today on that account. The Court were understood by the Bar to assent to this, but Judge Bassett and Judge Rodney saw proper to adopt the present expeditious mode of trying causes.