
    Hipp v. Robb and another.
    Where a defendant, after answer filed, files interrogatories to the plaintiff just before the commencement of the term, under circumstances which render it impossible for the plaintiff to answer them to that term, an affidavit for a continuance by the defendant, on the ground that the answers are material to his defense, should account, in a satisfactory manner, for the delay in propounding the interrogatories.
    Appeal from Guadalupe. This suit was brought by the appellees against the appellant, in August, 1847, on a promissory note. At the Spring Term, 1S43, the defendant answered, by a denial of any indebtedness and a plea of payment; and the cause was continued on his affidavit. On the 24th day of April, 1840, six days before the commencement of the session of the court at which the case was tried, the defendant filed interrogatories, requiring the plaintiffs to answer whether they had not authorized one Hardman to receive of the defendant payment of the note, and whether they (the plaintiffs) had not received a part of the amount due them upon the note. Appended to the interrogatories was an affidavit by the defendant, stating that the answers of -the plaintiffs to his interrogatories wore material to his defense, and that lie knew of no other witness by whom he could prove the same facts ; that he liad caused subpoenas to be issued to Bexar county to obtain the testimony of Hardman, who, he was informed, resided there; but that he had been unable to obtain service on him, and lie is informed that he has gone beyond the limits of tho State, and his residence is unknown to the defendant. The interrogatories were not served upon the plaintiffs or their attorney. When the cause came on for trial, on the 1st day of May thereafter, the defendant made an affidavit for continuance, the same in substance as that appended to his interrogatories, with the additional averments that the plaintiff's resided in the city of Hew Orleans, and the attorney, in that county; and that the interrogatories, for “ some cause,’’ had not been served on them or their attorney. The court refused a continuance. There was a judgment for the plaintiff!?, and the defendant appealed.
    
      Gordon, Hancoah, and Vanderlip, for appellant.
    
      Rector and Hamilton, for appellees.
   WHBBiiBE, J.

The error assigned is the ruling of the court in refusing a continuance. And we are of opinion that there was no error in that ruling. It does not appear when the subpoenas mentioned in the defendant’s affidavit were issued, or when it came to his knowledge that he could not obtain the testimony of the witness. Nor lias the defendant accounted, in any satisfactory manner, for having delayed propounding his interrogatories to so late a day. They were filed barely in time for service on the plaintiffs, who were to answer them had they been present in the county, but not in time to have been forwarded to them at a distance to obtain their answers. There is reason to apprehend that it must have seemed to the court, as it does to us, that the interrogatories may have been propounded at so late a day, not to obtain the answers of the plaintiffs to be used as testimony at the term then at hand, but to afford the ground of an application for further delay. However this may be, the defendant has not shown the use of that diligence which a vigilant suitor, conscious of a just defense, would have used, and which the law requires; nor has he shown any satisfactory excuse for the want of it. We are of opinion that the judgment be affirmed.

Judgment affirmed.  