#### *Higginbotham and Others v. Chamberlayne.

Argued Thursday, February 16th, 1815.

I. Continuance — Absence of Material Witnesses.* — A motion for a continuance, on the ground that a material witness for the party is absent, (it being proved that a summons for him was delivered to the sheriff in due time,) ought not to be overruled on the ground that an order was made at the preceding term for taking the depositions of the parties de bene esse, and the party had not taken the deposition of that witness, on account of whose absence, principally, the cause was then continued.

See Hook v. Nanny *&*others, 4 H. & M. 157.

In this case, which was an action of assumpsit in the Superior Court of law for Henrico County, upon the calling of the cause for trial, on the plea of non assumpsit, and before the jury were sworn, the defendants moved for a continuance, “first, because the plaintiff had not filed his account ; secondly, because the declaration was blank as to the quantities of wheat and tobacco, and sums of money; thirdly, because Wyatt Starke, a witness living in Buckingham County, (who was sworn by one of the defendants to be material to the defense, and without whose testimony the defendants could not safely go to trial) was absent, although a summons for him was proved to have been delivered to the sheriff in due time.” But the court over-ruled the motion; “first, because it is usual not to *266compel the plaintiff to file his account, unless called for by the defendant previous to the trial; and there was no proof that the defendants had required it to be filed, or had demanded a copy thereof; secondly, because there was an order at the last term for taking the depositions of the witnesses of the parties de bene esse, and the defendants had not taken the deposition of the said Starke; and at the last term, this cause was continued for the defendants, principally on account of the absence of the said Starke; and, thirdly, because it has been the universal practice of the lawyers practising at this bar, to allow such blanks in declarations to be filled up at the moment the jury is about to be sworn.” To which opinion of the

court, the defendants filed a bill of exceptions ; and, a verdict being found, and judgment rendered against them, appealed to this court.

Call, for the appellants.

Wirt, for the appellees.

*Monday, December 11th, 1815.

*

«Continuance — Absence of Material Witness. — On this subject, see *foot-note*to Hewitt v. Com., 17 Gratt. 627, and other *foot-notes*there cited; mono-graphic *note*on “Continuances” appended to Harman v. Howe, 27 Gratt. 676. The principal case is cited to the point in Walton v. Com., 32 Gratt. 864; Welch v. Com., 90 Va. 321, 18 S. E. Rep. 273; Phillips v. Com., 90 Va. 403, 18 S. E. Rep. 841.

The president pronounced the court’s opinion, (without deciding the other points occurring in the cause,) that the Superior court erred in not granting a continuance on account Of the absence of Wyatt Starke, the witness in the bill of exceptions mentioned ; the reason given by the court for rejecting the same being insufficient.

Judgment reversed; verdict set aside, and cause remanded for a new trial.