
    Wheeling.
    Absent, Harrison, J.
    
    Joseph V. Williams vs. David Freeland.
    July Term, 1867.
    1. To warrant a continuance it is not only necessary to show the use of due diligence to procure a witness, but also the materiality and importance of his evidence to the issues to be tried.
    2. lior is the absence of proof of the materiality excused by the absence of the client from sickness or otherwise; as it cannot be presumed that if the witness were present he could prove the case, nor that the client, if present, would prove the materiality of the witness.
    8. A case in which “belligerent rights” to parties engaged in the late rebellion, are denied. (See Hedges vs. Michael, et al.)
    
    This suit was brought in Preston county, in J une, 1864, against Joseph V. Williams aud Charles Williams. The action was trespass for seizing and carrying away the property of the plaintiff, David Freeland, in January, 1864. The plea of not guilty was entered at the September term, 1864. At the September term, 1865, the defendant J. V. Williams tendered three special pleas, setting up as a defense what is termed “belligerent rights,” claiming to have been, at the time the property was taken, in the service of a government styling itself the Confederate States of America, &c.
    The plaintiff objected to the filing of these pleas, on the ground that they were not offered until the cause was called for trial on the fifth day of the term, and that no notice had been given that such pleas would be offered; and they were no answer to the declaration,’ but tended to embarrass and delay the trial. The defendant in support of the applieation to file tfie pleas, filed some affidavits to sfiow that tfie attorney wfio filed tfie plea of not guilty was not employed by tfiem to do so, but tfiat fie fiad done so only as tfie friend of defendants. Tfie court overruled tfie objections and permitted tfie pleas to be filed and plaintiff excepted. The plaintiff filed special replications to tfie tfiree pleas, to wfiich tfie defendant demurred; and tfie cause was fieard upon tfiis demurrer at tfie December term, 1865, wfien tfie plaintiff insisted tfiat the pleas were insufficient and that upon tfie principle of going up to tfie first fault tfie pleas should be overruled. Dpon argument tfie court quashed tfie pleas for want of certain formalities and allegations; without expressing an opinion whether tfie defendants were entitled to belligerent rights. Tfie defendant J. V. Williams, then asked leave to file three additional pleas of a similar character, but containing some matters omitted in tfie former pleas. Tfie court refused him permission to file these additional pleas, upon tfie ground tfiat they were offered too late and might delay tfie trial. Tfie defendant excepted to tfie opinion of tfie court in quashing tfie former pleas, and also in refusing to permit tfie latter to be filed.
    Tfie defendant by fiis attorney then moved for a continuance on tfie ground of tfie sickness of tfie defendant J. V. Williams, and fiis not being able to attend tfie trial, and tfiat one Parson M. Taylor, a material witness, was absent. In support of tfiis motion fie tendered a letter written by tfie defendant to one of fiis attorneys, dated four days before tfie calling of tfie cause, stating fiis inability, from sickness, to be present; and fie proved by a witness that fie saw tfie defendant at New Greek station the day before the calling of the cause, and tfiat fie looked as if fie had been sick, and fie said tfiat fie was then sick, but would try and get to court if he felt well enough. The subpoena for the witness Taylor, duly served, was also produced, and a certificate of a physician showing tfiat fie was unable to leave home by reason, of a severe attack of bronchitis. Tfie court refused a continuance and a jury was called wfio rendered a verdict for 1,110 dollars with interest from the 4th day of January., 1864, against J. V. Williams, but found Charles Williams not guilty.
    There were some other bills of exception taken during the progress of the cause, and one on the refusal of the court to set aside the verdict and grant a new trial, but they do not seem to have been considered by the court, and are not further noticed here.
    
      C. Boggass fof the plaintiff in error.
    
      Stanton Allison for the defendant in error.
    
      
      See page 187. Judge Loomis of the VI circuit was called to the bench.
    
   ÜR0WN, President.

This case involves substantially the same principles fully considered and decided in the cases of Hedges vs. Michael, Price vs. Lutman, argued at the same term, viz: the question of belligerent rights under which immunity is claimed for trespasses committed in aid of the rebellion; and the same ruling must be applied here that was there.

I think, therefore, that the pleas quashed and the pleas rejected, the latter of v'hick though more formal were not more substantial, contained no justification nor defence to the action, and were rightfully rejected by the court, though not for the reason assigned for doing it.

The motion for a continuance of the cause was also properly overruled; for to warrant a continuance the party ought not only to show due diligence to procure the attendance of the witness, but also the materiality and importance of his evidence to the issues to be tried.

To have a subpoena issued and the witness summoned and show his absence may constitute due diligence; but whether his evidence would be material if present is equally important. Nor is it excused by the absence of the party, from sickness or otherwise. For it is not to be presumed that the witness would prove the case if present, nor that the client would prove his materiality if present. The fact must be shown, and if not it cannot be taken to exist; at least, as against the other party. Once admit the doctrine of presumption, without circumstances to raise a presumption, in the place of proof, and not only would the proof he discarded, but continuances would be had continually for absences from many other causes than sickness — if not design.

In the ease at bar, suppose the party present but not willing to make oath to the materiality of the witness, or suppose he had directed the witness not to attend, or supposed the witness summoned for a show, should a continuance be granted ? Surely not; and yet if granted in this case, any or all of these things might have been true. It is true they are not to be presumed so, neither is the converse, whether for or against either party.

I think, therefore, that there is no error in the judgment to warrant its reversal by this court, but that it should be affirmed with costs and damages to the defend

Judge Maxwell concurred.

Judgment arriemed.  