
    James A. Brent v. John A. Heard.
    1. Evidence: affidavit fob continuance: effect of admission of as evidence. —wiiere, eitlier in civil or criminal causes, the adverse party admits as evidence the affidavit of the other, offered for the purpose of obtaining a continuance, and containing a statement of the testimony of absent witnesses, the party admitting-the affidavit may contradict it. Rev. Code, 622, article 302.
    2. Evidence: affidavit fob continuance: effect of admitting the faots stated thebein. — Where an affidavit contains a statement of the testimony of absent witnesses, and is offered for the purpose of continuing- a cause, and the adverse party admits the facts contained in the affidavit, this admission precludes him from contradicting it.
    3. Same : case in judgment. — B., in an affidavit offered for the purpose of continuing- a cause, set forth the testimony of certain absent witnesses. II., the adverse party, admitted the facts contained in the affidavit. On the trial it was held, that the admission of the affidavit by II. was of such a character as precluded him from contradicting it.
    Error to the Circuit Court of Hinds county. Hon. John Watts, judge.
    
      J. W. Robb, for plaintiff in error. •
    The only question presented by the second assignment of error, is, did the conrt below err in permitting the plaintiff below to contradict by his evidence matters stated by the defendant in his affidavit for a continuance?
    The defendant below was forced into trial upon the admission of the facts stated in the affidavit. The effect of that admission was that the matters stated were absolutely true, and not that the witness, if present, would testify that they were true. This was so decided by this court in the case of McDaniel v. State, 8 S. & M. Prior to the revised code of 185Y, this was the rule, and the uniform practice of the courts, both in civil and criminal causes, and the new .code has changed it only in reference to criminal causes. Revised Code, page 6’22. The testimony of young Brent, set out in the affidavit which was contradicted by the testimony of the plaintiff below, was material and important, as being the only evidence in the case apart from the loose expressions used at the making of the contract, tending in tbe court to show bow Hoard himself at tbe time understood and afterwards construed tbe contract.
    
      Johnston and Shelton for defendant in error.
    It is insisted in tbe second assignment tbat tbe court erred in permitting tbe plaintiff below to contradict by bis own testimony tbe statements contained in tbe written application, wbicb was considered as an affidavit for a continuance.
    Under tbis assignment two questions appear to present themselves : Firstly, wbat effect should have been given to said affidavit, whether tbat its statements were to be taken as true, or only tbat the witness, young JBrent, if present, would have so sworn; and, secondly, wbat weight is tbe testimony of a party entitled to when opposed by tbat of an ordinary witness.
    Tbe first question is urged to have been definitely settled in tbe case of McDaniel v. State, 8 S. & M., page 401, and tbat it was there decided that when an application is made for a continuance, and tbe party forced into a trial on tbe admission of his application, tbat all its statements should be taken for true, and were not liable to be contradicted. We say tbat this question was not only decided in that case, but -was expressly waived by Judge Clayton. See page 415, in .the opinion of tbe court.
    "We have found no adjudication of tbis court on tbe point before us, and suppose it must now be decided on tbe general principles of law applicable thereto. We are not informed bow tbe law stood on tbis point previous to tbe enactment of article 302, page 622, of Code of 185Y; but numbers of circuit judges have held tbe adverse party to admit, only, tbat tbe absent witness, if present, would so have sworn, wbicb is manifestly tbe correct decision. In criminal causes the application for a continuance would have been liable to contradiction by all tbe modes known to tbe law; then is it reasonable tbat greater weight should be given to tbe affidavit in civil causes? We think not. Tbe most plausible construction of tbe legislation on tbis point is, tbat tbe intention was to assimilate tbe law in criminal to what it bad always been in civil causes.
    It is said tbat tbe testimony of tbe plaintiff in tbe court below was not entitled to any weight against the statements contained in the application for a continuance. Is this so ? Certainly not, according to the language of the law. (See article 190, page 510, of new Code.) This law furnishes the only rule for the guidance of courts and juries in considering the testimony of parties. It can neither be added to or detracted from; and this is the precise view taken by this court in the case of Allen (& Go. v. Lyles, 6 George, page 517.
   ITaNdy, C. J.,

delivered the opinion of the court.

The plaintiff below sued the defendant on a promissory note for $165, payable to the plaintiff, and made by the defendant; to which action the defendant pleaded: 1, non assimypsit; and, 2, that the consideration of the note was the purchase of a mule by the defendant from the plaintiff, delivered to the defendant; andthai it was agreed between the parties at the time of the sale and of the execution of the note, that if the defendant during the ensuing winter should purchase a certain steam-mill in the same county the plaintiff would take back the mule, and give up the note; and averring that, about the 1st of February thereafter, the defendant purchased the saw-mill, and shortly thereafter, and within a reasonable time, that he informed the plaintiff of said purchase, and desired him to take back said mule and give up the note, which plaintiff, upon said demand, agreed to do, but which he failed to do at that tíme; and subsequently, about the 1st October, 1858, he again agreed to take back the mule, but has wholly failed and refused to do so ; further averring that he has always, since the purchase of said sawmill, been ready to give up said mule. The plaintiff replied, admitting that it was agreed that, if the defendant should purchase the saw-mill as alleged, then the mule should be delivered up to the plaintiff; and that defendant informed the plaintiff of his purchase of the saw-mill, but denies that defendant ever tendered or produced the mule for delivery; and alleges that defendant received the mule at the time of sale^ and has used and worked him ever since, and now has him. The defendant rejoined, denying that he was bound to tender to the plaintiff tbe mule, and averring that the contract was that the plaintiff was to take back the mule, upon the' happening of the contingency mentioned in the plea.

The verdict being for the plaintiff, the defendant moved for a new trial on various grounds. The motion was overruled, and the defendant thereupon took his bill of exceptions and brings the case here.

The first error insisted on is, that the court allowed the plaintiff to give evidence contradictory to the facts stated in the affidavit in behalf of the defendant, offered for a continuance of the cause; on which affidavit, the plaintiff admitted the facts contained therein, and thereupon the trial was proceeded with, and the affidavit was read in evidence to the jury.

This question is argued by counsel as if the plaintiff had merely admitted the affidavit as evidence, or that the affidavit should be received as, or instead of, the testimony of the absent witness, or the like. If that had been the character of the admission, we are of opinion1 that it would have been competent to introduce testimony to contradict it. This court has never sanctioned the rule that, in civil cases, the admission of such a statement, under such circumstances, precludes the party admitting it from confronting its statements by evidence; nor do we think that such a rule would be sound. It has been held that it was not competent to do so in' criminal cases (Dominges v. The State, 7 S. & M. 475); and this rule, even in criminal cases, has since been altered by statute, so that the affidavit shall only have such effect as if made by the witness before the jury. (Rev. Code, 622, article 302.) As no similar provision is made by statute with reference to civil cases, it would appear that the legislature intended only to change the rule as held by this court; and as no such rule had been held in regard to civil cases, that it was not necessary to prescribe any rule or make any provision as to such cases.

This legislative rule appears to recognize a principle which we think should be applied as well to civil as to criminal cases; and that is, when the statement is simply admitted as evidence by the adverse party, that it shall have no more effect than if the same testimony had been given by the witness in person before the jury.

But the admission in this case went further than this. The flcmitiff admitted the facts contained in scdd written statement, and upon that admission the defendant went to trial, and these facts were material to the issue. This was not merely an admission that the absent witness would have testified as stated in the paper if he had been in court, or that the statements of the paper should be read in evidence. It was an admission in open court, for the purposes of the trial then pending, that the facts as stated in the paper were true¡ and this clearly precluded the plaintiff from introducing testimony to show that the statements of the paper were not true. Tet such testimony was introduced, and the jury found according to it.

Upon the introduction of testimony by the ¡Dlaintiff to contradict these statements, the defendant objected, but the court overruled the objection and allowed the plaintiff to introduce such testimony. This was not allowable under the broad admission of the plaintiff, and the court erred in admitting it.

Several errors are assigned in relation to the instructions given by the court. These instructions have direct reference to the evidence on the part of the plaintiff, contradictory to the admission of the plaintiff; and as that testimony was -improperly admitted, it is not necessary to consider the instructions which are founded on it.

The judgment must be reversed, and the cause remanded for a new trial.  