Thomas Vickers, plaintiff in error v. Jane Hill, administratrix, and John M. Webster, administrator of the estate of Curtis Hill, deceased, defendants in error, 1 Scam. 307

Smith, Justice, delivered the opinion of the Court: This was an appeal from a judgment of a justice of the peace, to the Circuit Court of Marion. Two questions are presented for the consideration of this Court.

It is alleged for error, first, that the Circuit Court refused to continue the cause upon the application of Vickers, on an affidavit made by his agent as to the materiality of the facts within the knowledge of the absent witnesses, because he had not used due diligence in obtaining the attendance of a witness, he having omitted to tender the witness, who lived in a foreign county, his fees for attendance; secondly, because the Court compelled the plaintiff in error to go to trial in the Circuit Court, on the plantiffs admitting the facts, expected to be proved by the other witnesses, conformably to the provisions of the practice act in relation to continuances.

On the first point it is-clear, that the granting and refusing continuances of causes, is a matter of sound legal discretion, resting entirely within the exercise of that discretion by the Court, under the provisions of the statute; and it is to judge whether or not the party applying for the continuance, has complied with the requisitions of the statute. So far as an intimation may have been given in the case of Cornelius v.

Boucher, decided in this Court at its December term, 1820, that an exception might exist to the general rule, that exception is to be confined to the simple point of materiality of the facts resting in the knowledge of the witness, and their tendency to prove the point directly in issue. Should the Circuit Court decide erroneously in such a case, it would be considered a decision of a legal question, and to which ah exception might be taken, and consequently would be .a ground of error.

I am not aware of any possible case other than this one, which would not involve the exercise of legal discretion in the Court in determining whether the applicant had complied with the requisitions of the practice act.

On the other ground of admitting a portion of the affidavit as evidence, and excluding that part relating to the facts which the witness might prove, to procure whose attendance, due diligence was decided not to have been exercised, it is not perceived that there was any inaccuracy of decision; as the plaintiffs in the Court below chose to admit all the statements contained in the defendant’s deposition, as to the facts expected to be established by the other absent witnesses; and as that part of the statement of facts resting in the knowledge of the absent witnesses, who had not been sufficiently summoned, was not deemed sufficient cause for a continuance, the Court very properly directed the jury to disregard that portion of the defendant’s statement, which had not been made evidence in the cause.

Judgment is affirmed with costs. Judgment affirmed. Note. Where a statute declares that in a certain case a continuance shall be granted, it is error in the Court to refuse it. Rountree v. Stuart, Breese 43. Since the decision of the above case, the following

section has become a law: Exceptions taken to opinions or decisions of the Circuit Court, overruling motions in arrest of judgment, motions for new trials, and for continuances of causes, shall hereafter be allowed; and the party excepting may assign for error any opinion so excepted to, any usage to the contrary notwithstanding. Acts of July 1837, 109; Gale’s Stat. 540. Breese 12.