
    ASA SMITH and al. vs. JOHN SNODDY.
    
      On an appeal from a judgment of the Madison circuit court.
    
    16 June, 1820.
    
      Bridges for appellant, Hardin for appellee.
    A continuance should not be granted because of absent witnesses, residing out of the county, unless the affidavit states what the witnesses will prove.
    A continuance should not be granted against a non-resident, tho' before issuing the writ he fails to give security for costs; if he gives such security at the calling of the cause, it is enough.
   Judge Owsley

delivered the opinion of the court.

This case turns upon the correctness of the circuit court’s refusal to continue the cause.

Snoddy appears to be a non-resident, and his action was brought without giving bond and security for cost—and the continuance was asked for by Smith partly on the ground of Snoddy’s failure to give security for cost, and partly on account of absent evidence.

There was certainly no necessity for continuing the cause on the score of absent evidence; the witnesses appear not to reside within this country, and the affidavit contains no suggestion of the facts which Smith expected to prove by them; and in such a case it has been repeatedly held, no continuance ought to be allowed.

And with respect to the failure of Snoddy to give security for cost, it need only be remarked, that security was given on calling the cause; and the failure to execute bond for that purpose, before suit was brought, does not within itself furnish a cause for continuance, as was held in the case of Cox vs. Fenwick, 3 Bibb, 183.

The judgment must be affirmed with cost and damages.  