
    
      SAUL ET AL vs. SEE’S CURATOR.
    
    APFEAl FROM THE COURT OF THE FIRST DISTRICT.
    If the sheriff returns that a witness 1s not to be found, the party praying the continuance on that account, must show that he is a resident of the parish, or that he took steps to obtain his deposition.
    If the sheriff returns that the witness is not to be be found, the party praying for a continuance on that accouut, must show that he is a resident of the parish, or that he took steps to obtain his deposition
    Eastern District.
    
      January 1831.
    In this case a witness had been subphoened by the defendant, and the return of the sheriff showed that he could not be found. A continuance was then prayed for on the affida-davit of the defendant’s counsel, setting forth that subsequent to the institution of the suit, lie had been employed by the intestate, who informed him of certain facts which he expected to prove by Chazel, the absent witness, who was overseer of the Orleans Navigation Company. The affidavit set forth the facts which the witness was expected to disclose. The Court refused to grant the continuance, on the grounds ; 1st. That due diligence had not been used, the curator having taken no steps to ascertain whether the witness resided in the parish, or whether his testimony was material. 2d. That the intestate might have been mistaken in his opinion as to the materiality of the testimoney.
    There was judgment for the plaintiff, and the defendant applealed.
   Martin J.,

delivered the opinion of the court.

The defendant and appellant complains that a discontinuance was improperly refused him below.

It was proved on the affidavit of Lockett, who deposed he was employed by the intestate to defend him, and was informed by him that Chazel was a material witness in his behalf. The affiant stated the facts which the intestate said he expected to prove by this witness, and they appeared material.

A subpoena was taken out for the witness, and the sheriff returned he could not be found.

From the sheriff’s return we must conclude that he was not informed of the witness’ place of residence, or that he had none in the parish.

In the first case, the defendant was in fault in neglecting to give the requisite information to the sheriff; in the latter, his deposition ought to have been taken.

We think -the District Court did not err.

It is, therefore, ordered, adjudged andjdecreed, that the judgment of thejDistrict Court be affirmed with costs.  