Barrow v. Hill
54 U.S. 54 (1851)

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U.S. Supreme Court

Barrow v. Hill, 54 U.S. 13 How. 54 54 (1851)

Barrow v. Hill

54 U.S. (13 How.) 54

Syllabus

Where the only exceptions taken in the court below were to the refusals of the court to continue the case to the next term, and it appears that the continuance asked for below and the suing out the writ of error were only for the purpose of delaying the payment of a just debt, and no counsel appeared in this Court on that side, the 17th rule will be applied and the judgment of the court below be affirmed with ten percent interest.

Hill was a citizen of South Carolina, and sold two slaves to Barrow, a citizen of Louisiana. Barrow gave his note for $2,000, dated 12 February, 1848, payable twelve months after date. When due, it was protested. Hill then filed his petition in the circuit court of the United States. Barrow's answer admitted the execution of the note, but alleged that the negroes were unsound. In April, 1850, the cause came on for trial. The counsel for the defendant moved the court for a continuance

"on the ground that William C. Fisher, a material witness for the defendant, is absent or does not appear on the trial of this cause; that the said Fisher is in the city at this time; that defendant desired the clerk of this court to summon said Fisher, but that the marshal has not been able to find him and serve him with a subpoena."

Nevertheless it appeared that on the next day Fisher was present in court and examined. The conclusion of the first bill of exceptions was as follows, viz.:

"The defendant further declares that he has not induced or consented to said Fisher's absence, to all of which the defendant offered to swear, but the court overruled the motions on the ground that it appeared by the declaration of the counsel for defendant that the witness Fisher was the day before seen by him in the City of New Orleans, and therefore the court declared that the testimony of the said witness would be received before the conclusion of the trial. Accordingly, the next morning, the witness appeared in court and was regularly examined by the counsel of both defendant and plaintiff, and his testimony was commented on by counsel before the cause was finally submitted, whereupon the counsel for the defendant excepts to the ruling of the court and tenders this his bill of exceptions, praying that the same may be signed and made a part of this record."

"THEO. H. McCALEB, United States Judge"

Page 54 U. S. 55

The second bill of exceptions was as follows:

"Be it remembered that at the trial of this cause before the court, at the term aforesaid, the counsel for the defendant moved the court for a continuance on the grounds that a commission was issued by this Court on 11 March, 1850, to take the testimony of William S. Green, a resident of the State of Kentucky, but supposed to be at that time on a plantation owned by said Green in the Parish of Terrebonne, Louisiana. That the testimony of said Green is important, material, and necessary to the defense. That due diligence has been used to have this testimony of said Green taken, but that the said commission has not yet been returned to this court, to all of which the defendant offered to swear, but the court overruled the motion on the ground that the commission had issued sometime after issue joined, and subject to the right of the adverse party to have the case tried when regularly docketed, and also upon the ground that a sufficient time had been allowed for the return of said commission. Whereupon the counsel for defendant excepts to the ruling of the court and tenders this his bill of exceptions, praying that the same may be signed and made a part of the record."

"THEO. H. McCALEB, United States Judge"

After hearing Fisher and another witness for the defendant and a witness for the plaintiff, the court gave judgment for the plaintiff, whereupon the cause was brought up to this Court upon the two exceptions above mentioned.

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