
    DEN, SNEDECKER against ALLEN.
    Motion that defendant stand trial at the next circuit, he having once put it off, refused.
    This cause had been noticed for trial at the last Middlesex circuit, held by the Chief Justice, and on its being called on in the paper, the defendant put off the cause [*] on the common affidavit, of the absence of a material witness.
    
      Mr. Leake, on the part of the plaintiff, now moved the court, that the defendant stand trial, at the Middlesex circuit, to be held in December next; or, in default, thereof, that in the Term of February following, his plea of not guilty be overruled, and judgment of default be rendered in favor of the plaintiff. In support of this motion, he endeavored to show that great and unreasonable delay had been caused by the defendant, that his conduct was vexatious, and that in this instance he had imposed on the court, and then commenced an argument to show the origin and progress of the practice of putting off trials on the ground of the absence of a witness.
   Pennington, J.

— Mr. Leake, your arguments are, no doubt, learned and instructing; but I shall be glad to be informed, if there is any authority or precedent for the rule now asked for ? Can the court legally, and according to the rules of practice, allow your motion ?

Mr. Leake, said, if the court was not willing to hear him, he would sit down.

Pennington, J. — The court is no doubt willing to hear you; but it may save time to show', that in case the vexation and imposition you complain of, is true in fact, that the court can give you relief in the way you ask it; the application appears to me novel and unprecedented. Can you produce an authority that would justify the court in sustaining the present application?

Mr. Leake said he wished to be heard through; and then went into a lengthy discourse on the subject of putting off trials in case of the absence of witnesses, and concluded with citing the following cases to [203] justify his motion: 3d Wil. 394; 2 Bac. title “Pleas and Pleadings;” Salk. 257; 3d Bur. 660; 2d Blac. Rep. 810.

The Court, without hearing the other side, expressed [*] an opinion that the application was novel and wholly unprecedented; that the cases cited by Mr. Leake were foreign from the question before the court; that they could not foretell what legal cause might exist for putting off the cause at the next circuit; that there was nothing in the present case that called for a changedn rules, founded on long practice and experience; and the Chief Justice said, there was no foundation for the complaint. The cause had been once tried before him; he, therefore, knew that the absent witness was a material one; and it appeared by affidavit, and was not now denied, that he had been duly subpoenaed, and he did not appear.

Leake, for plaintiff.

R. Stockton, for defendant.

Rule reversed.  