
    LIZARDI ET AL. vs. ARTHUR & FULTON.
    APPEAL PROM THE COURT OS THE PIRST JUDICIAL DISTRICT.
    Vhere defendants’ witnesses failed to appear on being attached, and the counsel asked for time to- send for his clients that they might make the necessary oath for a continuance, and tendered his own affidavit; all of which was objected to and declined. Held, that the continuance was, properly refused.
    /here the party, whose witnesses fail to attend, is necessarily absent from' the state, the affidavit of his attorney for a continuance may suffice,, although his knowledge of the facts sworn to, is derivative,
    
      Where defondants’ wit-appear on'being attached,amUiie for time to send that'"they'mightlo make the sary oath tor a continuance,and own affidavit, all j’eoted to ami cief,1"'0?/ Hfd’ «anee was pro-
    
      This is an action against the makers and endorsers of a promjSsory note duly protested for non-payment.
    Arthur, one of the defendants, who was arrested, made a sPec'al defence. The others pleaded the general issue.
    On the trial, defendants’ witnesses were called, and not being present, attachments issued. Towards 3 o’clock the witnesses not appearing, defendants’ attorney moved for time to send for his clients ; stating they could probably be found at their counting-house in the city, and might make affidavit of the materiality of the testimony of the witnesses on which to ground a motion for a continuance of the cause. This was opposed by the plaintiffs’ counsel, as the parly was bound to be in court at his peril. The defendants’ attorney then tendered his own affidavit; and moved fora continuance on account of the absence of the witnesses; stating the materiality of their testimony, as having been communicated to him by one of his clients. These motions were severallyoverruled, and the defendants’ counsel excepted to the opinion of the court. The trial proceeded, and there was judgment for the plaintiff. The defendants appealed.
    
      T. Slidell, for the plaintiffs.
    
      W. S. Upton, for the defendants and appellants.
   Morphy, J.,

delivered the opinion of the court.

The defendants complain that an application for a continuance made by their counsel, was improperly overruled. From the bill of exceptions taken to the judge’s opinion, it . . ° ' . appears that certain witnesses, summoned in the cause,having fa'le<l 1° attend, they were ordered to be attached. At about 3 o’clock, P. M., the return of the sheriff was, that they could not be found ; thereupon, the counsel moved for time sen(^ f°r defendants, that they might make their oath as materiality of the testimony of said witnesses. This , i » • . was refused, on the ground that parties are bound to be m court at their own peril. • The counsel then tendered his own affidavit, and rested on it his application for a continuance. It was, in our opinion, properly refused. The affiant does not swear (even to the best of his knowledge and belief) that he expects to prove the facts set. forth in his affidavit; but that he is informed, and was told by his clients that the witnesses would prove such facts. Had the defendants been absent from the state under circumstances not suspicious, the counsel’s knowledge of the facts, although derivative, might perhaps have been considered sufficient; as we have held in Penne vs. Tourné, 2 Louisiana Reports, 463 ; but they being in the city, and their absence from the court house unaccounted for, an affidavit of this kind was clearly inadmissible. But. the counsel for the appellants insists that this affidavit was wholly unnecessary, because not called for by the adverse party, pursuant to article 466 of the Code of Praclice; and that, article 464, entitled him to a continuance without it. Whether called for or not, the affidavit was no doubt made from a sense of its necessity at the time, but the counsel we think is mistaken, when he imagines that under the latter article of the Code, it was not incumbent on him to make any showing at all in support-of his application. It requires of the party who wishes a continuance, to prove that he has not been able to procure the necessary evidence, <^c.; the party, then, or his attorney, must be teady to satisfy the court of the necessity and materiality of the evidence wanted, by disclosing the facts expected to be proved. Where the process of attachment had proved ineffectual, the defendants were to have entitled themselves to a continuance by the same affidavit which would have been required of them,.had no such process issued. Code of Practice, articles 464 and 471; 12 Louisiana Reports, 256. The right to obtain continuances are of primary importance to a correct administration of justice, but it is not unfrequently very much abused ; for this reason it is that some discretion is left to the court, who, while they protect parlies in the fair exercise of this right, should be vigilant in preventing its abuse. The inferior courts have better opportunities than we can possess of distinguishing the cases where the purposes of justice required a continuance from them, where a party seeks only delay and procrastination. With their decisions in questions of this kind we will not interfere, unless they^be clearly erro-" neous.

the [¡,^¡¡£sses attend, is necesfmm the "state* !';e of continuance may though hí¡ Jno',le'1ge of to, is derivative,

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