delivered the opinion of the Court:
An application was made to the Circuit Court, in this cause, for a continuance to the next term, founded on a deposition of one of the defendants, showing the absence of a witness, whose testimony appears to be material on the trial of the cause, residing in Missouri; and of another residing in a distant county.
The facts which the deposition discloses, and which it is alleged the witness could prove, would be material for the defendant in his defence; and as the declaration was filed only twelve days .before the sitting of the Court, it was not within the power of the defendants to have obtained the testimony of the absent witnesses under a Dedimus, conformably to the statute, in time for a hearing of the cause—ten days’ notice of the intention to take the testimony, being required to be given to the opposite party. There was consequently no laches on the part of the defendants.
The Judgment is reversed with costs—a new trial granted— and a venire de novo awarded.
Judgment reversed.
Note. See Vickers v. Hill et al. Ante 307, and note; The People v. Pearson, Ante 473; Covell et al. v. Marks, Ante 525.