
    Locker vs. Wigglesworth.
    October 19.
    Error to the Greenup Circuit; William P. Roper, Judge.
    
      Continuance. Affidavit.
    
    Case 147.
    After a party has been sworn and examined and under that examination made statements which entitle him to a continuance, it is error to force him into trial merely because he refuses to throw those state-men tsinto the form of a written affidavit.
    
      McConnell for plaintiff.
   Chief-Justice Robertson

delivered the opinion of the court.

FROM the facts exhibited by the record, in this case, we are of opinion that the plaintiff in error was improperly forced into trial, at the term the judgment was obtained against him. On his motion for a continuance, he swore to facts calculated to shew, that by the conduct of his adversary, he had been thrown off his guard, and induced to omit to make the necessary preparation for his defence, which otherwise he would have made. The circuit court overruled his motion for a continuance, as it seerns, because, by the directions of his lawyer, he refused to reduce to writing in the form of affidavit, the facts sworn to. It would have been proper to require a written affidavit in the first instance, but after he had been sworn and examined, and had made statements entitling him to a continuance, it was wrong to force him to trial, merely because he would not oiler a written affidavit.

The judgment must be reversed with costs, and the cause remanded for new proceedings to be had.  