BRANDER ET AL. vs. FLINT, CURATOR, &c., 10 La. 391

Bullard, J., delivered the opinion of the court. The only question which this case properly presents for our solution is, whether a continuance was properly refused in the court below.

The plaintiffs, on an.affidavit of one of their* attorneys, applied for a Continuance, on the ground, that he was advised the testimony of a certain witness was material, whose evidence could not be procured in time by reasonable diligence; that he was in hopes to sustain the charge of mal-versation in office against the defendant, by this witness and others, &c. i Jffeldy that the affidavit was insufficient, as the attorney did not swear to his belief of the materiality of the evidence, nor that he expects to prove the facts alleged, or satisfy the court that the testimony of the absent witnesses will be produced at the next term, or by ■whom he is advised of these matters, and that lie hopes, but does not swear, that lie expects or will be able to prove his allegations.

The appellee having filed his account of administration, which appeared satisfactory to the Court of Probates, prayed for a prolongation of his term for another year, on the ground that he had not fully administered, aud that the interest of the estate required an extension of his term. The appellants, creditors of the estate, opposed his prayer, on the allegation, principally, that he had appropriated the'funds of the estate to his private use, and pray that he may be dismissed from the curatorship.

One of the attorneys of the opposing creditors made oath, that he was advised that Thomas Barrett, of New-Orleans, was a material and competent witness on the part of the opponents; that his evidence could not have been procured since the filing of the opposition by any reasonable diligence; that he hopes to sustain the charge of Mr. Flint having appropriated the funds of the estate to his private uses, by said Barrett and other evidence.

The other evidence, the affiant is advised, would not be material without the evidence of Barrett; that the affidavit is not made for delay, but to effect the ends of justice, and that the opponents are absent from the parish.

We are of opinion that this affidavit did not set forth sufficient legal grounds for a continuance; the attorney does not swear to his belief of the materiality of the evidence, nor that he expects to prove the facts alleged; nor does he satisfy the court that the testimony of the absent witness will be produced at the next term of the court; nor does he state by whom he is informed or advised of these matters; and lie hopes to sustain the charge of malversation, but does not swear that he expects or believes he will be able to do so. 1 Martin, N. S., 343. 4 Ibid., 127. 3 Ibid., 293.

It is, therefore, ordered, adjudged and decreed, that the judgment of the Court of Probates be affirmed, with costs.