
    GENERAL COURT,
    OCTOBER TERM, 1803.
    Middleton vs Edelen.
    Where a rule of court authorizes, under cireu mst an* ces, a continuance of a cause on the suggestion of either party, without costs, those circumstances must be proved, otherwise than by such party’s oath.
    Trespass quare clausum fregit. The lands in dispute were located, and plots, with depositions taken on the survey, were returned. Some of the witnesses, whose depositions had been so taken, were sick and unable to attend court.
    
      
      Buchanan, for the plaintiff,
    moved for a continuance of the cause without costs, under the rule of the court made at May term 1790, viz. “That when any cause shall be continued under affidavit of the inability of a witness to attend, whose deposition has been taken in the presence of the adverse party, and filed in court* if either parly \v¡IÍ not permit such deposition to be read, nor agree to the taking of the deposition of such absent witness on interrogatories, to be exhibited in writing, the party so refusing shall not be entitled to Ms costs of the term, as of course, under any rule of this court,” unless the defendant would consent that the depositions of the witnesses, who were unable to attend from indisposition, might be read at the trial. He filed in court an affidavit of the plaintiff, stating* among other tilings, that the agent of the defendant was present when those depositions were taken on the survey.
    
      Key, for the defendant,
    objected to the proof offered by the plaintiff as insufficient to exonerate him from the payment of costs, under the above ride of court. Indifferent testimony, he said, was necessary, and not that of the plaintiff himself. That the plaintiff’s own oath was held sufficient to grant a continuance at his own expense, because then it is against'his interest to have a continuance, unless the facts he swears to are true. But that in this case it was not so.
    
      Mason, Bhaoff and Buchanan, for the Plaintiff,
    
      Martin, (Attorney General,) Key and Kilty, for the Defendant.'
   Chase, Ch. J.

The court, are of opinion, that the fact, that the agent of the defendant was present when the depositions were taken on the survey, cannot be proved by the oath of the plaintiff himself. He must establish that, fact by indifferent' testimony, or the cause musí he continued at his expense.  