M'Kay against The Marine Insurance Company

M’Kay against The Marine Insurance Company. [f a party has had an opportunity of examining a transient witness, want of his testimony is no cause for putting off a trial. Absence of counsel is an excuse for not going to trial which the court discountenances. The defendants, at the New York circuit, moved to put off the trial, for want of tbe testimony of a material witness, who was a transient person, and bad once been witbin tbeir power. Tbe court refusing to do tbis, a verdict went against them, in consequence of wbicb, and tbe absence of tbeir principal counsel, tbe defendants moved to set it aside. [MAJORITY — Per Guriam.] Per Guriam. Tbe decision at tbe circuit was right. Whenever a party has bad an opportunity to examine a transient witness, and has suffered it to pass by, the want of bis testimony is no objection to going to trial. In Post v. Wright and Buchan, (1 Caines’ Rep. 111,) tbe absence of counsel was urged as an excuse, but tbe court refused to admit it, and we think all excuses of that sort ought to be discountenanced. Motion denied.