
    Thomas W. Price, ads. John Justrobe.
    
      The granting of a continuance, is a matter for the discretion of the judge before iohom.the cause is brought.
    
    
      A note, promising to deliver “ so many barrels of rice m will amount to two hundred dollars, at one dollar per ciot.n another, for the delivery of twenty-five barHls of rice, at oner dollar and twenty-jive cents, per not: Held that the measure-of damages, in an action brought, ivas the actual value of the rice, on the day appointed for the delivery.
    
    
      The possession of orders drawn by the defendant, for. goods^ were not sufficient evidence of the delivery of the goods; the plaintiff being a merchant and presumed to keep regular' boohs.
    
    This was an action of .assumpsit on the following notes, viz. “Charleston, 8th November, 1814. Sixty days after date, 1 promise to deliver Mr. Justrobe, or order, such number of barrels of new rice as will amount to the sum of two hundred dollars, value received this day, atone dollar, per. cwt. (Signed,) T. W. Price.” "Sixty days after, date, I promise to deliver Mr. Justrobe twenty-five barrels of rice, at one dollar and one quarter per cwt. 28th December, 1814. (Signed) T. W. Price.” To these was superadded an account for goods sold and delivered, amounting to $99 87-100. The only evidence offered to prove the account were orders, drawn by the defendant, requesting the plaintiff to deliver goods to third persons, but there were neither book entries or any other proof of the' delivery of the goods, than the mere possession of the orders. The jury, under the direction of the court, found' a verdict forth e plaintiff, estimating the rice at its value at the time it was to "be delivered, which exceeded considerably the value fixed, by the notes, and also for the amount of the account. Before the. Case went to the jury in the circuit court, the defendant moved to continue it, on the ground of the absence of a witness who had been summoned, and whose materiality was sworn to by the defendant; but the court rejected the motion, and ordered the case on for trial. The defendant moved for a new trial on the following grounds; .
    1st. Becanse the defendant was unprepared for trial, and under the circumstances, the cause ought to have been continue ecj, and compulsory process issued against the. witness;
    
      2d. Because the ju?y erred in estimating the value of the ríce at a higher rate than that expressed on the face of the notes.
    3d. Because plaintiff was not entitled to recover the amount of the account, as no hook of original entries or other .legal proof was offered of the delivery of the goods.
   The, opinion of the Court was delivered by

Mr. Justice Johnson.

From the nature, of the thing, applications for continuances mustalway he addressed to the discretion of the court, and any fixed rule oh the subject is impracticable. It may be possible, and the rule of court is an effort to establish something like a principle, on which to exercise it; but in its application to the ■infinity of perplexing questions to which it gives rise, the presiding judge must be left free to act in such a manner as to secure a speedy and fair trial, the great object and end of the rale itself; and this court, for the most obvious reasons, ought' not to interfere. It would involve the absurdity of controlling, a discretion by discretion, without the aid of the circumstances on which it was first exercised. The defendant can. therefore, take nothing on this ground of the motion.

2d. It is impossible, by the most subtile construction, to give to the notes on which this action is partially founded any other legal effect than that of contracts for the delivery of rice, mentioned in them, on the days stated; the price mentioned, being-nothing more than the consideration on which they were found-' fed; and there is no principle better established or more universally acted upon, than that the measure of the damages is the value of the thing, on the day .on which it should be delivered; to which there is no legal objection to super add by way of damages, also, the interest which has since accrued on the amount.. The jury did right, therefore, in adopting it in their estimate of the damages in this case.

3d. The last groun4 is not without difficulties; hut after' considering the subject well, my mind has come to the conclu- ■ sion that the account was not legally proved. The orders were mere authorities to deliver the goods to the person in whose favor they were drawn, and do not contain any intrinsic evidence that they were delivered; and when it is recollected that the plaintiff was a merchant, and kept, or ought to have kepf •regular books, in which the goods delivered ought to have beca entered, and that he himself, or any clerk, was competent to prove them; keeping them back, or not accounting for them, creates a strong suspicion that all was not fair. The presence of the book was necessary for another purpose; it .might have appeared that the account had been settled, or that the goods had only been partially delivered; and under the usage of this country, where slaves are the usual agents when goods are wanted for family use, iiwould.be impossible for the defendant to disprove the delivery. I think, therefore, it was incumbent on the plaintiff to prove the delivery of the goods by other means than the mere production of the orders, and a new trial is .ordered, unless the plaintiff enter a remittitur for the sum of $99 87-100, the amount of the account.

White, for the motion.

JOum-.m, contra.

Hay, Mott, Gantt, and Huger, Justices, concurred*  