Page:United States Reports, Volume 1.djvu/262

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1788.

NGERSOL read an affidavit, ftating the want of a material witnefs, who had been ʃubpœne‘d, and moved to put off the caufe for that reafon.

Levy prayed that, if the caufe was continued, it might be under a rule to try next term, or Non Pros ; and mentioned a cafe argued in this Court by Lewis, when it was fo ruled.

Ingerʃol objected, that the rule for trial or Non Pros, was granted upon fome laches on the part of the Plaintiff ; and that there was no idea of that kind in the prefent cafe. He added, that the practice in the Supreme Court was contrary to the rule prayed for.

.− Let the rule be entered : But this will not preclude the Plaintiff from fhewing reafonable caufe of delay, at the next term. 

ANKSON moved for the appointment of referees in this caufe, in the abfence of the oppofite counfel ; though, as be faid, by agreement.

But, T: It is an invariable rule not to appoint referees, but in the prefence of both parties. So many difputes have arifen about what was meaning of the attornies, that we have determined not to pay any regard to agreements, which are not reduced to writing. 

ALLOWELL moved for a rule to take the depofitions of going witneffes &c. before the return of the writ in this caufe.

−It has been determined, upon argument, though often mentioned at the bar, whether we can grant the rule before the return of the writ, or not. But it has been the practice to take the depofition, de bene eʃʃe, under a rule, fubject to the opinion of the Court ; and this upon the authority of the cafe in Sheridan. Notice however, fhould be given to the Defendant, as no appearance, by attorney, can be yet entered. Rh