
    Deford v Hayes.
    Decided, April 20th, 1819.
    i. Continuance — Absence of Witness — Under what circumstances a continuance ought to be granted, on the ground of the absence of witnesses: without positive proof, that the subpoenas were delivered to the Sheriff of the County, or sent to the Sheriff of any other County.
    See Deans v. Scriba, 2Call 415; Hook v. Nanny, 4 H. & M. 157; Syme and others y. Montague, 4 H. & M. 180; Ross v. Norvell, 3 Munf. 170; Milstead y. Redman, S Munf. 219; & Higginbotham V. Chamberlayne, 4 Munf. 547.
    When this cause (being an action of as-sumpsit) was called for trial in the Superior Court of Prince George county, the plaintiff by Counsel moved the Court for a continuance, upon the following grounds. One of the Counsel made oath, that he believed the plaintiff to be a resident of the town of Portsmouth in this State; that he had received letters from him dated there, and addressed him there; that, on account of the distance at which he resided from the Court, the Counsel had promised to have the Witnesses, one residing in Petersburg and the other at City Point in Prince George County, regularly subpoenaed for him; that, in performance of that promise, he gave a written memorandum to the Clerk of the Court to issue Subpoenas to the Sheriff for Josiah Thomas, and to the Serjeant of Petersburg for James G. Chalmers; that he had twice seen the said Thomas attending the Court as a witness, when the cause was not called; and, from a conversation between them, considered him a material witness, and indeed regarded his evidence as sufficient to sustain this action; that, in July last, when a special term of the Court was to have been holden, but was not, the said Thomas informed the said Counsel of his probable removal to Norfolk or Hampton; and that the said Counsel gave him a blank subpoena, which he, the witness, promised to have executed if he did remove; a fact of which the Counsel was yet ignorant: — that, on the morning appointed for the trial, the said Counsel was informed, for the first time, that the other witness, (who was stated by the plaintiff to be the most material,) had removed from Petersburg to Tennessee; and that he knew of no other witness in Petersburg, *who could prove the claim; and had had no communication with the plaintiff since July last. The Clerk of the Court also deposed, that it was his general rule to deliver subpoenas, &c., to the Sheriff and Serjeant, or to leave them at a store in Petersburg, where the Sheriff frequently called, and requested them to be left; and, therefore, without any particular recollection of this case, he believed the subpoenas to have issued accordingly. , The Sheriff also stated that said Thomas had removed from City Point.
    But, there being no proof of the receipt of the Subpoenas by the .Sheriff of Prince George, or of any having been directed to the Sheriff of any other County, the Court refused to continue the cause: — to which opinion the plaintiff excepted.
    Verdict, & Judgment for the defendant.
    The plaintiff appealed.
    
      
       (Coniimsaisce — Absence of Witness, — A motion for a. continuance is addressed to the sound discretion of the court, under all the circumstances of the case; and, though a.u appellate court will supervise the action of an inferior court on such a motion, it will not reverse a j udgmeni on that ground, unless such action was plainly error) eous. As a genera] rule when a witness lora party fails to appear at the time appointed for a trial, if such a party show that a subpoena for a witness has been returned executed, or. it not so returned, was delivered to the proper ofíicer of the county or corporation in which the witness resides, a reasonable time before the time for the trial, and shall swear that the witness is material, and that he cannot safely go to trial withont his testimony, a continuance ought to be granted. The party thus shows, prima facie, that he is not ready for trial, though he has used due diligence to be so; and, in the absence of any thing to show the contrary, the court ought to give him credit for honesty of intention, and continue the ca,se if there be reasonable ground to believe that the attendance of the witness at the next term of the court can be secured, especially if the case has not been before continued for the same cause. But circumstances may satisfy the court that the real purpose of the party in moving for a continuance is to delay or evade the trial, and not to prepare for it, and in such case of course, the motion ought to be overruled. Welch V. Com.. 90 Va.. 321, 18 S. IS. Rep. 273; Phillips y. Com, 90 Va. 403, 18 S. K. Rep. 841, both quoting from Hewitt's case, 17 Gratt. 629, and citing principal case. The principal case was also cited on this subject in Terry v. Kitzgerald, 32 Gratt. 845.
      See further, foot-note to Hewitt v. Com, 1? Gratt. 627; monographic note on "Continuances” appended, to Harman v. Howe, 27 Gratt. 676.
    
   By this Court, the Judgment was reversed, and a new trial awarded.  