Majority
p. 611Bosworth vs. Perhamus.
Headnote
Where the defence to an action is usury, and the plea hath been duly verified so as to entitle the defendant to the right to examine the plaintiff as a witness, the defendant it seems may claim the personal attendance of the plaintiff when the latter is a non-resident of the state, and is not bound to accept a commission to take his testimony; the court in bank will not however make any order in the matter, the proper course being to apply to the circuit judge to put off the trial in case the plaintiff does not attend after receiving notice to that effect.Practice under usury laws. On an affidavit setting forth that the defence in this case is usury, that the plea is duly verified, that the defendant can not safely proceed to trial without the testimony of the plaintiff who resides in the state of Vermont, and that the cause is noticed for trial at the Monroe circuit, a motion is made to stay proceedings unless the plaintiff shall attend the trial, so that he may be examined as a witness, in pursuance of the provisions of the act to prevent usury, Statutes, Sess. of 1837, p. 487, § 2.
P. Cagger, for the motion.
v2. Taber, contra.
The second section of the statute provides that, in the case made by the defendant’s affidavit, the plaintiff may be called and examined as a witness in the same manner as other witnesses may be called and examined. No doubt this court has power to grant the motion ; but the putting off trials for the reason that material witnesses are absent, is an office which can be more discreetly exercised by the circuit judge. Non constat that the plaintiff will not attend upon due notice that his presence is required. Where the plaintiff is the real party in interest, and a sworn defence is interposed according to the statute, it is no doubt reasonable to require his personal attendance on the usual affidavit of materiality, even though he be
p. 612
a non-resident of the state, provided the defendant shall desire it. The circuit judge, however, has the power to postpone the trial, the same as in other cases, and should be appealed to. The motion is denied ; but without costs.