
    *Harris v. Harris.
    April, 1831.
    (Absent Coalter, J.)
    Continuance — Absence of Material Witness — Delay.— upon a motion for a continuance, upon the ground of tile absence of a material witness, the court, if it sees cause to suspect that the party is mistaken or that Ms object is delay, may examine him as to what he expects to prove by the absent witness.
    In an action for slander, brought by John Harris against William Harris, in the circuit court of Nelson, the following slanderous words were charged in the declaration, to have been spoken by the defendant of and concerning the plaintiff, viz. that the defendant had said, “that the plaintiff, as the agent of William Moon, had defrauded Moon in the purchase of wheat,” and “ that the defendant had matters fixed to prove the plaintiff a rogue.” And in justification of these words, the defendant pleaded, that the plaintiff as the agent of Moon, a purchase of wheat for Archibald Taylor, did defraud Moon, as purchaser for Taylor, in this, that the plaintiff had purchased a crop of wheat of one John Roberts, at the price of 175 cents per bushel, for and upon his own account, and the price of wheat and flour having greatly fallen in the market, the plaintiff afterwards imposed-bushels of that same parcel of wheat, by delivering the same to Moon or to Taylor, falsely and fraudulently representing and pretending,- that he had purchased the wheat for Moon or Taylor, at the price of-per bushel as aforesaid, and requested Moon or Taylor to receive the wheat of him, and to allow him, as their agent, the said price of-per bushel for the same, when in fact, the plaintiff had purchased the said parcel of wheat, at his-own risque and on his own account, and not as the agent of Moon or Taylor: wherefore, the defendant was well justified in speaking the said words &c. Upon this plea, an issue was made 4ip.
    When the cause was called for trial, the defendant moved for a continuance, on the ground of the absence of Archibald *Taylor, who had been duly summoned as a witness for him, and whose testimony he swore was material: and examined by the court, as to the points on which he deemed Taylor’s testimony to be material, he státed, that he expected to prove by him, that a crop of wheat which the plaintiff had purchased from John Roberts at a high price, had afterwards been sent to Taylor, and delivered to him a s wheat purchased for him by his agent Moon, through the instrumentality of his plaintiff, who was employed by Moon to purchase wheat for Taylor; that he Taylor had paid 175 cents per bushel for this wheat, the same price at which the plaintiff had bought it; and that when Taylor received it, he did not know that the plaintiff had purchased it on his the plaintiff’s own account, but supposed that it had been purchased by his agent Moon, for account of him Taylor : and the defendant farther stated, that he expected to prove by other witnesses, that the plaintiff had in fact purchased the wheat on his own account at 175 cents per bushel, and had afterwards imposed it on Moon, as wheat purchased for Taylor at that price. Upon this, the plaintiff agreed to admit, that Taylor had received the wheat from Moon, as Wheat bought for him by Moon, and that Taylor when he received it, knew the plaintiff had bought it on his own account; and to admit also, that the plaintiff had bought the wheat at 175 cents per bushel, though not on Taylor’s account, but for another person, who had thrown it on the plaintiff’s hands ; but he denied, that he had imposed- the wheat on Moon, as wheat purchased for Taylor, and alleged, that he had sold the wheat as his own property to Moon for Taylor, at 162J4 cents per bushel, which was the price Taylor paid him for it; all which he was ready to prove by Moon, then present in court and attending as a witness. Upon this, the court not regarding the evidence which the defendant said he expected from Taylor, material to his defendant, and recollecting also that the cause had twice before been continued at the defendant’s instance, under circumstances which induced the court to suspect that *the object was delay, overruled the motion for the continuance : to which the defendant filed exceptions.
    Verdict and judgment for the plaintiff for 500 dollars damages; from which the defendant appealed to this court.
    Nicholas and Stanard for the appellant : Johnson for the appellee.
    The questions argued were, 1. Whether the evidence which the defendant stated he expected from the absent witness Taylor, was material; 2. Whether the court had a right to examine the party as to the testimony which he expected from the absent witness, and thus to compel him to disclose his defence ? Anthony v. Lawhorn, 1 Leigh 1, and Mill-stea'd v. Redman, 3 Munf. 219, were cited.
    
      
      Contimaance — Absence of Material Witnesses, — On this subject, the principal case was cited in Walton v. Com. 32 Gratt. 865; Welch v. Com., 80 Va. 321, 18 S. E. Rep. 273; Phillips v. Com., 90 Va. 403, 18 S. E. Rep. 841; foot-note to Hewitt v. Com., 17 Gratt. 627. Por further information, see monographic note on '‘Continuances" appended to Harman v. Hewe, 27 Gratt. 676.
    
   CABELL, J.

The first and main question is, Whether the evidence expected of Taylor as stated by the defendant, was material to his defence ? To decide this question, it is necessary to compare the evidence with the facts stated in the plea ; for when the defendants in an action of slander pleads justification, and the issue is made up, on the facts set forth in the plea, it is to those facts the evidence must relate. The substance of the plea is, that the plaintiff had purchased wheat on his own account, at 175 cents per bushel, and afterwards when the price had fallen, fraudulently delivered it to Moon or to Taylor, falsely representing that he had bought it as the agent of said Moon or Taylor, and requested Moon or Taylor to receive it, and to allow him as agent aforesaid, the same price of 175 cents per bushel. This plea would be supported by evidence, that the plaintiff, after having purchased the wheat on his owh account, had made the fraudulent delivery and false representations, stated in the plea, either to Moon or to Taylor. Did the defendant expect to prove by Taylor, that the plaintiff had made the fraudulent delivery and false representations to Moon, or did he expect to prove that he had made them to Taylor ? Not to Taylor, certainly ; for *his statement as to the evidence he expected to adduce, shews that he intended to prove that the plaintiff had imposed the wheat on Moon, as wheat purchased for Taylor ; and that he expected to prove this, not by Taylor, but by other witnesses. He did not pretend, that Taylor could prove the price originally given for the wheat, or that it was sent or delivered to him by the plaintiff, or that the plaintiff had made any representations to him on the subject. The testimony of Taylor, therefore, was not material; and, consequently, his absence afforded no ground for the continuance of the cause.

I do not think that the question as to the propriety or impropriety of compelling a party to disclose what he expects to prove on the trial, arises in this case ; for it does not appear that the defendant objected to being examined on the subject. I should not be disposed to encourage such a practice, except in cases where the judge may suspect, that the party is mistaken as to the materiality of the testimony, or that he is influenced by a desire to delay the trial unnecessarily. And as, on such occasions, the judge, before whom the motion for a continuance is made, has better opportunities of forming correct opinions as to the motives of the party, than this court can have, I think a considerable latitude of discretion ought to be left to the judges of the courts below, on this subject.

The other judges concurred.

Judgment affirmed.  