Pine v. Pro

Dewey, J.

Case for obstructing a water-course. Plea, not guilty. Verdict and judgment for the plaintiffs.

Before entering into trial, the defendant moved the Court for a continuance of the cause. The motion was founded on an affidavit of the defendant made in open Court, setting forth that he had been unable to prepare for the trial in consequence of “severe bodily affliction,” under which he had laboured ever since the service of process upon him, and for a long time before; that he believed he could be in ,readiness for trial at the next term; that in his belief he had “a meritorious defense to the action;” and that the affidavit was not made for delay but for justice. The Court overruled the motion, and refused a continuance. This is the only error assigned.

The propriety of refusing or granting continuances depends so much upon the discretion of the Court to whom the motion is made, that it must be a very strong case which would induce this Court to revise a decision on that subject. The affidavit in question does not make out such a case. It is in ^various respects too vague. Among its defects is the omission to state what the defendant expected to prove. It was necessary the Court should know the facts upon which he depended, in order to be able to judge whether his defense was meritorious or not; and they should have been stated, that the adverse party might have admitted them had lie been so disposed. Besides, the affiant was before the Court, who could perhaps, from his appearance, form an opinion *458 whether his “ bodily affliction ” had been such as to disable him from making the necessary preparation, for trial.

G. G. Dunn, for the plaintiff. ,/. S. Watts, for the defendants.

Per Guriam.—The' judgment is affirmed; with five per cent. damages and costs.