
    Scogin v. Hudspeth.
    1. A motion for a continuance is addressed to the sound discretion of the Court, and the Court will be held to have exercised that discretion soundly, unless it appear from the record that proper diligence has been used to procure the testimony of witnesses, or good cause be shown why such diligence has not been used.
    3. Evidence that defendant had rented to plaintiff a farm on land belonging- to the U. S. for thirty barrels of com, which witness presumed was to be paid at next corn gathering time, held insufficient to support the plea of set-off and to have beers properly excluded by the Court. (.)
    APPEAL from the Jackson Circuit Court.
    
      
      
        (a.) A note given for a certain sum payable in work, cannot be set-off in an action founded on a debt due in money, although the debt accrued for the same kind of work stipulated for in the note. See Prather v. McEvoy, 7 Mo. R., p. 598.
    
   Wash, J.,

delivered the opinion of the Court.

This was an action commenced in the Jackson Circuit Court by petition and summons by Hudspeth, the defendant in error, against Scogin, the plaintiff in error. The summons was served on the 21st of April, 1832, and the return term of the Court began on the 19th of June thereafter. The defendant pleaded in set-off amongst other things, that the plaintiff was indebted to him" in the further sum of sixty dollars, for the rent of his, the said defendant’s, farm by parol lease. The defendant also moved the Court for a continuance of the cause, on the following affidavit: The defendant R. R. Seogin makes oath and says, that he cannot go safely into trial at this term of the Court, on the account of the absence of John S. Hunter, J. Dallerhide, and-- —-, material witnesses who reside in the State of Alabama, by whom he expects to prove that a part of the matters offered in set-off, are due to him from said plaintiff; that he cannot prove the same facts by any other persons; that he has not had time to get their evidence at this term of the Court; and that he has a reasonable expectation to procure their testimony by the next term of this Court.” The Circuit Court overruled the motion for a continuance.

The defendant then offered to prove, as a set-off under his pica, that he had rented to the plaintiff a (arm made on public land, that is, on land belonging to the general government, for thirty barrels of corn, which the witness said he presumed was to be paid at the next corn gathering time.” The testimony was objected to by the plaintiff’s counsel, and excluded by the Court. The defendant in the Circuit Court excepted to the opinion of the Court, in refusing the continuance, and in rejecting the evidence offered in support of the plea of set-off. The plaintiff had judgment, to reverse which the defendant Scogin has appealed to this Court, and assigns for error,

First. The refusal of the continuance, and

Second. The rejection- of the evidence offered.

A suit instituted under the petition and summons act, is triable of right'áf file return term, unless for good canse shown.

Motions for continuance are addressed to the sound discretion of the Circuit Court, and this Court must see that its discretion has been exercised unsoundly, before it will reverse a judgment for that cause. Eor aught that appears in the record, the defendant by proper diligence might have procured the testimony to the return term of the Court; and no good cause is shown why he had not done so; nor any effort made to ■obtain the testimony.

The evidence offered in support of the plea of set-off, did not at all fit the case, or show any right on the part of the defendant to claim at that time, either thirty barrels of corn, or sixty dollars ; and was, therefore, rightly excluded.

The judgment of the Circuit Court is, therefore, affirmed, with costs.

M’Girk, C. J.,

dissenting.

I dissent from that part of this opinion relating to the diligence the party should have used to entitle him to a continuance. In my opinion, it is not likely that any thing that could have been done between the time of the service of the process and the trial, would have availed any thing. As to the residue of the opinion, I concur.  