
    STATE vs. SCOTT.
    
      Nashville,
    
    
      May 1806.
    In this case the prosecutor filed an affidavit, stating that a man who lived in Smith county, was a material witness, that he was not present when the other witnesses were bound over, so as to be bound with them, that he has issued a subpoena but the witness has not attended, &c.
    
      Wharton objected, that no reason appeared why the witness was not present when the others were bound over. The cause could not be continued.
    If a material witness be absent without neglect of prosecutor, cause may be continued on his affidavit.
   Per Curiam.

There does not appear to be any culpable neglect on the part of the prosecutor, this being the first term at which the bill is found ; beside it is not to be presumed that the prosecutor could well tell what witnesses would be necessary, until he consulted the Attorney General, &c.

Cause Continued.  