Tazewell County IL Archives Court.....Bailey, V Hardy 1850
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Deb Haines http://www.genrecords.net/emailregistry/vols/00003.html#0000719 May 25, 2008, 8:01 pm

Source: Records Of Cases Illinois
Written: 1850

Samuel P. Bailey et al., appellants, v. J. E. Hardy, Appellee.

Appeal from Tazewell.

In an application for a continuance on account of the absence of a witness, if 
the testimony sought is important only in connection with certain facts, these 
facts should be set forth or referred to in the affidavit, so that the 
materiality of the evidence may be apparent to the court. (a)

This was an action brought by appellee before a justice of the peace, and 
taken by appeal to the Circuit court of Tazewell county. In the Circuit Court, 
Bailey applied for a continuance of the cause upon his affidavit; stating that 
he was not prepared for trial, for want of a witness by whom he expected to 
prove, that the note sued on was in the hands and was the property of one 
Clement Turner, who held the said note by virtue of an assignment of Benjamin 
Prettyman, who delivered the same to one Thomas McGrew, since deceased, who 
delivered the same to the said Clement Turner; that no other witness could 
prove the same fact, etc., etc. This continuance was refused by the court, 
exceptions were taken to the ruling of the court.

Davis, Judge, at the same term, being September term, 1850, after overruling 
the motion for a continuance, proceeded to try the cause without the 
intervention of a jury, and gave judgment for appellee.

Merrimans & Johnson, for appellants.

Champlin & Wallace, for appellee, cited 8 Wend., 600; Chitty on Bills, 215, 
220; R. S., 385, sec. 8.

Treat, C. J. The application for a continuance was properly denied. It was 
made to appear that the testimony of the absent witness would be material on 
the trial. The defendants expected to prove by the witness, that the note sued 
on was, prior to the commencement of the action, the property of Turner by 
virtue of an assignment from the payee. This fact of itself would not 
constitute any defense to the action. The note may once have belonged to 
Turner, and still have been the property of the plaintiff when this suit was 
brought. It may have been returned to the payee, and by him transferred to the 
plaintiff. If the makers acquired any defense to the note while it was in the 
hands of Turner, that could be set up in this case, they should have so 
alleged in the affidavit. Where testimony is important only in connection with 
certain facts, those facts should be set forth or referred to, so that the 
materiality of the evidence may be apparent to the court. The court is not to 
presume that a state of case may arise, that may render the testimony 
important; but the party himself must affirmatively show, that he cannot 
safely proceed with the trial without the evidence. It is not necessary to 
inquire whether due diligence was used to procure the attendance of the 
witness. 

The judgment is affirmed.

Judgment affirmed.

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(a) Updyke v. Henry, 14 Ill., 374, accord.

Additional Comments:
Reports of Cases Determined in the Supreme Court of the State of Illinois from 
November Term, 1850, to June Term, 1851, both inclusive by E. Peck, Counsellor 
at Law. Volume XII. Reprinted from the Original Edition, with Annotations by 
William Gordon McMillan of the Chicago Bar. Callaghan & Company, Chicago, Ill. 
1881.

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