King of Spain v. Oliver , 14 F. Cas. 571 ( 1816 )

WASHINGTON, Circuit Justice.

If the different reasons, assigned in the affidavit of the Spanish minister for a continuance, had not been frequently urged to and overruled by this court, it might be proper to give an opinion upon them in the present case. It will be sufficient now to say, that a weaker case, for a motion to continue, can scarcely be imagined, than the present. When a party knows that his witness is about to leave the country, he may, and it is his duty to, take his deposition. If he has failed to do so, and he knows to what place the witness has gone, he ought to obtain a commission without loss of time, and to endeav-our to get it executed. If the witness departs, without the knowledge of the party that he had intended so to do, and he is ignorant to what part of the world he has gone, the case is altered, and the party is entitled to a reasonable indulgence. But he is not to remain inactive, indulging himself in suppositions, that the witness will return before he is wanted; and being disappointed, to make this the ground for a continuance. As to the Vera Cruz commission, it has slept there ever since the year 1812; without one effort having been made to get it executed, or even an enquiry respecting it, so far as this court is informed. This is not the vigi-iance which the court expects to be used by a suitor, who comes to ask the favour, which is now sought to be granted. The party in such a case, must discharge himself from the imputation of a culpable negligence. As to the want of a notice to the plaintiff, that the cause would be pressed on for trial, this is no reason for a continuance. If it has heretofore been continued by consent, it is no reason why each party should not be at all times ready and prepared for trial, when the cause is called. Neither does the court yield to the argument, that the agreement of 1813, or the continuance under it, discharged the rule to try or non pros. The continuance of a cause under rule, by consent, or by order of the court, amounts to no more than a dispensation with the penalty of the rule, at that time; but the rule continues until it is expressly discharged. But there is still less pretext for the argument on this occasion; since the cause having remained upon the docket ever since 1810, with- the rule annexed to it, and this, without objection or observation by the plaintiff’s counsel, it is clear, that they have never supposed that the continuance under the agreement, discharged it. Motion overruled.