Majority
p. 427M'Kay v. The Marine Insurance Company.
Headnote
THE defendants at the New- York circuit, moved to put off the trial, for want of the testimony of a material witness, who was a transient person, and had once been within their power. The court refusing to do this, a verdict went against them, in consequence of which, and the absence of their principal counsel, the defendants moved to set it aside.The decision at the circuit was right. Whenever a party has had an opportunity to examine a transient witness, and has suffered it to pass by, the want of his testimony is no objection to going to trial. In Post v. Wright and Buchan,[1] the absence of counsel was urged as an excuse, but the court refused to admit it, .and we think all excuses of that sort ought to be discountenanced.
* Ante, p. 183.