By the Court.

delivering the opinion.

This case being in the last resort, counsel for defendant, in the absence of his client, proposed to continue the case, to procure the testimony of a material witness, who was absent on a visit to the State of Texas. It was shown that the witness had been subpoenaed, and that his testimony was material.

The case was called early in the morning; and the defendant, who had been in attendance regularly, during the Term, resided fifteen miles from town.

The Court refused to allow the attorney to make the showing, and gave as a reason, that he knew, that the attorney could not state in his place, that the witness was not absent by the client’s consent or procurement.

That there are cases where the attorney may continue, notwithstanding the client lives in the county, there can he-no doubt. Suppose the witness be sipk, and that fact is known to the attorney? Could it be reasonably presumed, in this case, that the witness went to Texas to get out of the way, when by crossing the river, or even remaining at home, the same end might be accomplished ?

The Court, in all cases, instead of prejudging, should hear *413the showing, and then decide upon its sufficiency, according to the circumstances; and not assume, in advance, that a fraud is intended to be practiced, when the facts so strongly rebut that conclusion.

Judgment reversed.