From Wilkes.
A judge of the Superior Court has power to continue a cause upon the condition of reading absolutely the deposition of a resident witness; and a party accepting the terms cannot on the trial insist upon the production of the witness.
At the term before the trial the defendant had applied for a continuance, which was granted upon condition that several depositions then filed in the cause, and among them that of one Ford, should be read absolutely. On the trial the deposition of Ford was offered by the lessor of the plaintiff and objected to by the defendant upon the ground that the witness being a resident of this State, the judge who made the order had no power to impose upon the defendant the terms of permitting it to be read absolutely. The presiding judge overruled the objection, and a verdict being returned for the lessors of the plaintiff, the defendant appealed.
HALL, J.
Whether it was right to continue the cause upon the terms of reading absolutely on the trial the depositions filed, and among them that of Ford, is a question not open for us to decide. It was a matter solely within the discretion of the judge who made the order. It does not appear that in making it he has violated any rule of law. His opinion may have been formed upon a variety of circumstances wholly unknown to us. We must therefore say that the rule for a new trial should be discharged.
PER CURIAM. Judgment affirmed.