SECT. II. CONTINUANCE FOR CAUSE. It is in the power of courts generally, to grant a continuance to either party, upon good cause being shewn. The want of material testimony, which the party' has used due diligence to obtain, and which it is probable, may be procured at some future term, is a good cause for a continuance of the action. Whenever a motion for a continuance, on this ground, is made, it must be supported by an affidavit, stating the name of the witnesses, or nature of the evidence wanted, the facts expected to be proved, with the grounds of such expectation, and the exertions which have been used, to procure the desired evidence. If the affidavit be deficient in either of these particulars, a continuance will not be granted; and any of these circumstances, except what the witness is expected to say, may be disproved by counter affidavits. A continuance will not be granted, if the opposite party will admit, that the absent witness would, if present, testify to the facts stated in the affidavit.' It must also appear that the witness has been summoned, and had his fees tendered or paid to him, where it is in the power of the party so to do.2 An engagement by the witness to attend, is usually considered as equivalent to a tender of his fees. 1 Reg. Gen. S. J. C. 13. Appendix A. 15th Rule C. C. Pleas. Appendix B. 2 16th Rule C. C. Pleas. Appendix B. Where the same property has been attached, at the suit of several creditors, the subsequent attaching creditors may continue their actions, until the termination of that, on which the attachment was first made.1 Such continuances are without costs to the defendant. And after an action has been defaulted, it is usual to allow the plaintiff to continue the action for judgment, as long as he thinks fit, at his own cost. But if objection be made by the defendant, or by any one interested, judgment must be rendered upon the default, unless good cause can be shewn.2 The court will order a continuance for judgment, where a cross action is pending, or is about to be commenced, so that there may be a set-off of the judgments, if due diligence have been used by the party making the application.3 A continuance will be granted to enable a party to plead specially, where the nature of the case requires it; but it will not be done, as a matter of course.* If a defendant have been previously cited as trustee of the plaintiff, the action against him, will be continued, until the termination of the trustee process. 5 Where an indictment, and a civil action, for the same cause, are pending at the same term, it is usual to continue one of them." 1 Barnard v. Fisher, 7 Mass. Rep. 71. 2 Coolidge et al. v. Cary, 14 Mass. Rep. 115. 3 Winthrop v. Carlton, 8 Mass. Rep. 456. 4 Craigie v. Mellen et al. 4 Mass. Rep. 587. Winthrop v. Carlton, 8 Mass. Rep. 456. Foster v. Jones, 15 Mass. Rep. 185. • Commonwealth v. Bliss, 1 Mass. Rep. 32. SECT. III. HOW AND WHEN CONTINUANCES ARE TO BE APPLIED FOR. How. Continuances are applied for, by motion to the court. The motion, though, strictly speaking, it should be in writing, is generally made by parol. If granted, the fact is merely minuted on the docket, by the clerk. Where a continuance of any suit, or upon any terms, is agreed upon by the parties, no motion to the court is necessary. The clerk, on application to him, and on being furnished with satisfactory evidence of the agreement, will make the proper entry upon the docket. Where a continuance is made necessary by law, as when the defendant was absent from the Commonwealth, at the time of the service of the writ, — or dies during the pendency of the suit, the plaintiff generally suggests the fact which makes the continuance necessary, verbally to the court, and upon that suggestion, the continuance is ordered, and minuted on the docket. Where a continuance is moved, for cause, though the motion be not in writing, yet we have seen that the facts upon which the motion is grounded, must be verified by affidavit.1 When. A motion for continuance, should be made, as soon as possible after the sitting of the court, or after the cause which occasions the necessity of it, is known to exist. The rule of the Supreme Court, 1 Vide ante page 211, 396. requires that the motion should be made on the first day of the term,' when the necessity for it is known, except in Suffolk, where it may be made within the first four days,2— upon the penalty of the party moving for it, recovering no costs for that term; and in general, where a party is guilty of any negligence in making such motion, the other party ought not to be allowed to suffer by it. When an action is continued at the motion of either party, at the term it might have been tried, the party making the motion, must pay the opposite party, all his expense in procuring the attendance of his witnesses, if the cause for continuance were known before, unless notice of such motion were given, in season to prevent the summoning of the witnesses, or unless the opposite party was guilty of some misconduct, or took some undue advantage, which renders a continuance necessary. And the court may impose other terms, if the justice of the case require it.1 Where an action is continued by order of court, for advisement, care will be taken that neither party suffer by the delay; and if a party die during such continuance, judgment will be entered as of the preceding term, nunc pro tunc.5 So if a trustee die in such case, he may be charged, and judgment entered against him, as of a preceding term, where the cause was continued for advisement, or the trustee had refused further to disclose." 1 Binn. Rep. 172. Appendix A. Appendix A. Appendix A. Perry v. Wilson, 7 Mass. Rep. 393. • Patterson et al. v. Buckminster & Tr. 14 Mass. Rep. 144. |