Hooker v. Rogers
New York Supreme Court
Case for publishing a libel. At the last Washington . . »r circuit, (Nov. 14 th,) the defendant moved to put off this cause, on his affidavit that J. L. Thurman was a material witness for him, without whose testimony he could not safely proceed to trial, as he was advised by counsel and verily believed ; that on the 1 lift of November., he went to the house of Thurman for the purpose of subpoenaing r r r c him; but found him confined to his bed by sickness, and unable to…
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Case for publishing a libel. At the last Washington . . »r circuit, (Nov. 14 th,) the defendant moved to put off this cause, on his affidavit that J. L. Thurman was a material witness for him, without whose testimony he could not safely proceed to trial, as he was advised by counsel and verily believed ; that on the 1 lift of November., he went to the house of Thurman for the purpose of subpoenaing r r r c him; but found him confined to his bed by sickness, and unable to attend court. The affidavit stated the same thing as to the materiality of two other witnesses, whom it stated to have been…
1Opinion of the Court
Curia.
The affidavit was clearly sufficient; this being Ote first time the cause was noticed for trial. It now appears that Thurman, being since dead, cannot be had as a *578witness; but that is no answer. Had it been known to the defendant in season, he might have supplied his place by other testimony. It does not appear when the other witnesses were subpcenaed ; but the judge did not put his refusal on that ground. If he had done so, the defect in the affidavit, (if it is to be deemed one,) might have been supplied, and the service of the subpoena shown to have been in due season. Substituting…
2Cited by5 opinions
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- Howard v. FreemanNew York Supreme Court · 1867
- Perkins v. WhitneyNew York Supreme Court · 1890