
    
      SOUTHWARD & AL. vs. BOWIE.
    
    West'n Dis'ct
    October, 1826.
    Appeal from the court of the sixth district.
    An attachment may issue to compel the attendance of a witness without an affidavit of his materiality, where the issueing it will not delay the trial of the cause.
   Martin, J.

delivered the opinion of the court. Our attention is drawn to a bill of exceptions to the opinion of the district judge, overruling the application of the plaintiff’s counsel for process of attachment against a witness duly summoned, and who neglected to attend.

The court thought the attachment ought not to be granted, unless the plaintff’s attorney made an affidavit of the materiality of the witness.

We think the court erred. A party is not compelled to continue his cause, indeed he ought not, if his witness’s attendance may be compelled by legal process. The client may be absent, and the materiality of the witness may be a fact to which the delicacy of the attorney prevents him to swear. The process of attachment may accelerate, but cannot delay the trial: for if it be ineffectual, the party is to entitle himself to a continuance, by the same affidavit, which would be required of him, if he did not apply for a process against the witness.

Boyce & Thomas for the plaintiffs, Baldwin for the defendant.

When the witness resides, or is certain to be near the court house, the party may depend on the process of the court to bring him in, and neglect to attend and entitle himself to a continuance by his affidavit.

It is therefore ordered, adjudged and decreed, that the judgment of the district court be annulled, avoided and reversed, and the case be remanded for a new trial, with directions to the court, not to refuse, a process of attachment against a witness, because the affidavit of his materiality is not made, and it is ordered, that the appellee pay costs in this court.  