Wilson’s Red Book, 6.[†]
Supreme Court of Delaware.
November, 1793.
Page 12
Plaintiff’s witnesses not attending, he was willing the cause should be put off until the next week, defendant’s counsel agreed that plaintiff might put off his cause. But the Court doubted if the practice here was as in England, where [if] plaintiff carries down the venire facias and record and at nisi prim pockets it, the defendant may have a proviso venire facias, or rule, against next term and if — provided — plaintiff does not try, defendant may urge it on upon his own; but inclined (vide
Dall.[1] ) that plaintiff could not here put off his trial ex mero arbitrio. Vide 1 H.Bl. 637.
An affidavit was then drawn to prevent irregularity and offered to the court to see if it would answer but was objected to and the Court would have refused for they said they would not instruct counsel etc.
But the Court would not order it for trial next week and said although all the term is but one day, yet whenever a party is disappointed of trial they would not compel him again to prepare for the same term, although the practice of the Supreme Court had been so.
Afterwards the Court refused to grant plaintiff’s counsel an award of attachment against his witnesses returnable to next term; and CHIEF JUSTICE READ said he would not grant an attachment against witnesses for non-attendance hereafter unless affidavit be made by the person serving the subpoena if he paid or tendered the money allowed in the fee bill for one day’s attendance, and referred to the practice in England in Strange’s Reports.