Majority
p. 375William R. Seward and Wife vs. Mayor and Council of Wilmington. New Castle County, May Term, 1896.
Headnote
Practice. Witness,—The illness of a material witness is cause for continuance where the case has been once tried, although it is admitted that the testimony of the witness would be substantially the same as that given on the former trial, unless the truth of the testimony is also admitted.This was a motion for continuance. In this case the jury disagreed at the first trial and when it was called for a second trial, Harman, City Solicitor, produced affidavits setting forth the illness of three witnesses whose evidence was material in the cause, and asked for a continuance.
Bird, for the plaintiffs, objected to a continuance, upon the ground that the case had been once tried, that these witnesses would
p. 376
testify to the same facts, to which they had testified in the former trial, and that the evidence as taken down by the court stenographer might be produced at the trial. He denied, however, the truth of the evidence.
The City Solicitor admitted that the witnesses in question would testify substantially to the same facts as were testified to by them at the former trial and contended that the truth of the former evidence should be admitted or that a continuance be granted.
The affidavit presents a sufficient ground for continuance, unless the counsel for the plaintiff agree to admit the the truth of the testimony of the absent witnesses as delivered in the previous trial, as well as the fact that they would so testify at this trial. Let the case be continued.
Cullen, J., dissented.