
    No. III.
    William Hart v. Augustus W. King.
    (See .)
    
      Appeal from Bowie County.
    
    
      
      .—Hart v. King, p. 456.
      Action of court in granting or refusing continuances will not be revised unless it is plain that injustice has been done. Ward v. Boon, Dal., 561; Hipp v. Bissell, 3 T., 18; Hipp v. Huchett, 4 T., 20; Ayers v. Duprey, 27 T., 593; Peck v. Moody, 33 T., 84; Addington v. Bryson, 1 App. C., sec. 1292; Texas Express Co. v. Scott, 2 App. C., sec. 72. Where the allowance or refusal of the continuance is within the discretion of the court a very clear case of abuse of discretion must be shown to authorize a reversal. Lewis v. Williams, 15 T., 47; Byne v. Jackson, 25 T., 95; Baldessore v. Stephanes, 27 T., 455; McMahan v. Busby, 29 T., 191; Wiggins, v. Fleishel, 50 T., 57; Allyn v. Willis, 65 T., 65; M. P. Ry. Co. v. Christman, 65 T., 369; Guy v. Metcalf, 83 T., 37; T. & P. Ry. Co. v. Hall, 83 T., 675; Hannah v. Chadwick, 2 App C., sec. 518.
    
   JONES, Justice.

This is an appeal from a judgment of the District Court of Bowie County, rendered at the fall term of said court in the year 1841. The suit was instituted by the plaintiff Hart against the defendant King upon two promissory notes, executed by the defendant’s testator in his lifetime to the plaintiff. At the trial term of the court the defendant, by his counsel, entered the plea of nil debet, and immediately thereafter filed a general demurrer to the plaintiff’s petition, upon which the following judgment was rendered: “This cause coming on to be heard on demurrer, the defendant craved oyer of the notes, which was refused by the plaintiff. The cause was then heard on demurrer, which demurrer was sustained by the court. It was therefore ordered, etc.” It is difficult to discover upon what grounds the demurrer to the plaintiff’s petition was sustained, unless they may be explained by the bill of exceptions in which is contained the following sentence : “The defendant verbally craved oyer of the plaintiff of the notes upon which the suit was brought, which was refused by the plaintiff. Whereupon the court ordered that unless plaintiff would comply with defendant’s request aforesaid, the demurrer should be sustained, which was accordingly sustained.”

The only reason assigned by the district court for rendition of judgment upon the demurrer is the plaintiff’s refusal to the defendant of oyer of the notes upon which suit was brought. The refusal to give oyer of the notes, after issue joined on the part of the plaintiff, is sustained by the law, whilst the judgment on demurrer is erroneous.

The demand of oyer is a species of pleading, and should be made before issue joined—otherwise the court should permit the cause to go to the jury, or give judgment for the plaintiff if the defendant waive a jury. In this case the district court might have overruled the demurrer and required the defendant to go into trial under his plea of nil debet, when the plaintiff would produce the notes as evidence of the indebtedness of defendant’s testator. This course would give the defendant all the advantage which he could have gained by a demand of oyer at the proper stage of the proceedings.

The common law has long since settled that oyer of an agreement, note or other instrument, not under seal, can not be craved; and if the defendant improperly demand it, the plaintiff should be allowed to proceed as if no such demand had been made; but where the court may deem it necessary, it will, before issue joined, by analogy of the doctrine of oyer, order that the plaintiff permit the defendant to have an inspection, and copy of the instrument sued upon.

If the district court had given an order to the plaintiff to produce the notes for the defendant’s inspection in the present case, before an issue was rendered and accepted, the appellate court would not have questioned the exercise of a discretion which might have directed such order.

The court can not discover from any inspection of the record any legal ground, upon which judgment should have been rendered by the district court for the defendant upon his demurrer to the plaintiff’s petition, or for the order that the defendant should have oyer of the notes sued upon at the time of the demand.

It is therefore of opinion that the judgment of the District Court of Bowie County is erroneous, and that the same be reversed, and that the cause be remanded for further trial upon the merits.

Reversed and remanded.  