
    
      BROUSSARIF vs. TRAHAN’S HEIRS.
    
    
      Vol. 3, 725.
    West’n. Dist’ct.
    
      Sept. 1816.
    If a district court improperly a continuance, relief may be had in the supreme court.
    
      Brent, for the defendants.
    The affidavit on which a continuance was prayed by the defendants shews that they could not safely come to trial, on account of the absence of a record, which was material to their defence, and which notwithstanding every effort in their power, had been used, they had not been able to procure. Injustice was therefore done them, and the only remedy, which the law has provided for them, is the interposition of this court, in ordering a new trial. The power of awarding it is expressly given by the 18th section of the act of 1813, ch. 47: which authorises the supreme court, or any to which an appeal is allowed to remand the cause to the inferior court, from which the appeal is made, for a new trial, whenever it shall appear that justice requires it.
    
    The court is not fettered by any positive rule, but is left to the sound exercise of its discretion; if there be any rule of common law, any maxim of the civil law, any precedent in the practice of the former courts of this state, which militates against the exercise of the discretion of this court, the legislator has abrogated it.
    Indeed as great an injury may be done to a suitor, by denying him a continuance and compelling him to go to trial, when, notwithstanding his utmost deligence, he has not been able to procure the testimony, by which he is to support his defence, as by giving a wrong judgment against him.
    Whenever this court sees that the inferior one has, in any part of its proceedings, done an irreparable injury, gravamen irreparabile, to a suitor they will relieve him, whether this be in giving final judgment or an interlocutory one. It is true the party cannot appeal de plano from an interlocutory judgment; because by adventure, the final one may be in his favor, but it does not follow, from the circumstance, that he is to wait the final decision of his case in the inferior court, that this court will shut their eyes, when he is able to point out a material error in any part of the proceedings.
    It is true the English books of practice lay it down as an undoubted principle, that the denial of a continuance cannot be remedied by a writ of error: but this is a court of appeals not a court of error.
    In the United States even this maxim of British jurisprudence is exploded, and the denial of a continuance may be assigned as an error on which the judgment will be reversed. 4 Henning and Munford, 156. 1 Washington.
    
    
      Baldwin and Porter, for the plaintiff.
    The motion made by the appellants ought not to prevail; 1. Because, the granting, or refusing a continuance, depends on the discretion of the court below, and cannot be assigned as error here. 2. Because, if subject to re-examination in this court, no error was committed by the inferior tribunal.
    This court which is appellate, and has by law powers vested in it to re-examine, and reverse or affirm, the decisions of the inferior courts of this state, must in the exercise of those powers, be guided by the statute, which regulates its practice.
    
      By the act passed the 10th of February 1813, regulating the practice of the supreme court; and establishing courts of inferior jurisdiction, sect. 11—this tribunal is authorised to re-examine, reverse, or affirm, the final judgments of any of the district courts, where there is a special verdict; or on a statement of facts made out by counsel, or the judge, who tried the cause.
    By the act, supplementary to the act just mentioned, passed the 26th of March 1813, sect. 17; it is provided, that during the trial of a cause, the opinion of the court may be asked for, on any matter of law—that the party dissatisfied therewith, may except thereto; that the exception &c. shall be entered on the record, and sent up with the other proceedings in the cause.
    From this statute, errors in fact are only examinable, after final judgment; and the erroneous opinion of the court, on matters of law, during the progress of the trial, can alone he the ground of a bill of exceptions.
    This court then, must be satisfied that it was on a matter of law, the opinion of the court below was asked; and that there was error in that opinion, before they can remand the cause.
    We contend it was not on a matter of law, the opinion of the court was demanded here; it was an indulgence that was prayed for, which the tribunal, before whom the cause was pending, in its discretion, could accord or refuse, and in the granting or denying of which, no legal error could be consequently committed.
    This will be made clear, from an examination of the law, on the subject.
    Continuances, are not a matter of right, either in the crown, or the prisoner; M'Nally (Byrn's edition,) 454, Foster's Crown Law, 2. Civil and criminal cases, stand in this respect on the same footing, 3 Burrows 1513.
    Continuances are usually granted on a general affidavit. But the courts of common pleas and king’s bench, have different rules on the subject, 2 Tidd 708; and in a penal action, it will be refused altogether, ibid, same page.
    
    Nor will it be granted, where the defence to be established is slavery. 1 Bosanquet & Puller, 454.
    Nothing can be conceived more positive, than these authorities. If it was a legal right, the courts then could not grant it in one kind of action, and refuse it in another. They dare not make such a distinction, even in that country: nor would two such writers as M'Nally and Foster, be found to state expressly, that no such right existed.
    The decisions in our own country, are equally
    
      as certain and imperative on this head, as those in England.
    In 1 Binney’s Reports, 226 and 2 ibid. 80:93, the supreme court of Pensylvania declares, that many things must be left to the discretion of inferior courts, among others, new trials, and the granting or refusing continuances;—and that the exercise of that discretion could not be reviewed there.
    In 5 Cranch, pages 11 - 16 - 187 - 280, the, same doctrine is laid down in strong terms—And in the same work, vol. 4 237 and vol, 6 217, the supreme court of the union, expressly decides, that the refusing to grant a continuance, cannot be alledged, as matter of error there—that it is a power, resting entirely in the discretion of the court, who tries the cause.
    By the laws of Spain, the giving time to take testimony, depends on the will of the judge, Curia Phillipica, p. 1, title Dilaciones, and it no where appears, that an appeal lies from his refusal to accord it. ibid.
    In our late superior court, a continuance was refused, though founded on a strong affidavit; because accompanied by suspicious circumstances, in the party who made it—1 Martin, 3.
    
    In opposition to this strong current of authority, gathered from writers of the first eminence, or collected from the decisions of courts of the highest grade, and most exalted wisdom; this tribunal is required on the authority of one solitary decision in Virginia, 4 Henning and Munford, 157, and on a fanciful distinction, between the powers of this, and other appellate courts, to establish that to he a legal right here, which appears with the above solitary exception, not to be such any where else.
    It is said, this court is different from the courts from whence these decisions are drawn—that here, our appellate tribunal can reverse for errors in fact, and there they cannot take notice of any thing, which does not appear on the record. But a reference to our statute, already cited, answers this—and shews that on bills of exceptions, this court can examine only errors in law. Every book we open on the subject tells us a continuance is not a legal right; how then could the court below commit an error in law in refusing it?
    Again, the court is told that by statute, this court has the power to remand a cause, whenever in their opinion, the justice of the case requires it. But this must be taken in the sense, that the word justice, is always used in statutes, to wit, when legal justice requires it,—when an injustice, contrary to law, has been committed on one of the parties. To give any other construction, would enable this court in the arbitrary and uncertain ideas, which they might attach to the word justice, to dispense altogether with law;and reduce the citizens of the land, to enjoy their rights and properties, at the discretion of this tribunal.
    Another argument is pressed:—great injustice it is said, may be done by inferior courts, in refusing a continuance, and shall there be no redress for it? If arguments of inconvenience are to overturn law and precedent, the weight of them be found on our side. Let this court only think, what a temptation they hold out to perjury,—that placed here, they never can have the means of judging, like the inferior court, of the conduct or credibility of the party who makes the affidavit; and it will be easily seen on which side the balance preponderates. The case from 1 Martin 108, illustrates this position. A new trial was moved for there, because the court refused to continue the cause on a strong affidavit. The judge rejected the application, stating that there were suspicious circumstances attending the party who made it, such as swearing he was sick, though his appearance in court contradicted the assertion. How could all this ever have been brought up before a court of appeals, so as to have enabled them to judge of the credit due to the affidavit?
    But if this court has the power to consider the refusing to grant a continuance, as error in law; still a correct decision was given below. The affidavit was defective in two essential requisites, that are ever required on applications of this kind; viz. the exercise of due diligence—and the probability of obtaining the testimony wanted. The district court of course did right, in rejecting the application.
   Martin, J.

delivered the opinion of the court. The defendants pray, that this cause may be remanded to the district court, under the 18th section of the act of 1813, ch. 47, which empowers this court to remand in all cases, in which it appears to them, that justice requires it: and in order to satisfy us, that justice does require it, their counsel alleges, that injustice was done below, by refusing him a continuance, in order to enable him to place before the court a piece of evidence, which was material to their defence, and which by accidents, without their control, after having used due diligence, they were disabled from obtaining early enough for the trial.

The plaintiff meets the defendants on the threshold, by alleging, that the granting, or denial of a continuance, is a matter to which no right can exist, it being entirely a matter of favour and discretion.—And that the discretion of the inferior court below is, in this respect, under no kind of control.

1. The first authority, to which our attention is drawn, is a dictum of Lord Kenyon, that in an action on a penal statute, the court of the king’s bench, will not put off a trial for the plaintiff. 2 Tidd’s Practice, 708.

2. Next is introduced the case of Robinson vs. Smith, 2 Boss, and Pull. 454. in which the plaintiff claiming wages as a seaman, in a voyage from the West Indies, the defendant prayed a continuance, on account of the absence of a witness by whom he expected to prove, that the plaintiff was his slave. But the court denied the continuance, saying, the defence was an odious one, to which the court would not give any assistance, and that if the defendant were to offer to put it on the record, they should not give him a day’s delay.

3. Reference is made to 2 M’Nally’s P. C. 659, where it is laid down, on the authority of Poster 2, that the postponing of a trial is not a matter of right, and the court, in its discretion, may refuse or admit the motion.

4. The decision of the court of K. B. in case of Rex vs. D’Eon, is also introduced, in which Lord Mansfield observed, that men take such a latitude in swearing in the common form, that when suspicion arises from the nature of the question, or from contrary affidavits, the court will examine into the ground, on which the delay is asked, and have in criminal, as well as in civil cases, refused to put off a trial, notwithstanding an affidavit in the common form.

Leaving aside the abstract proposition, that a continuance is not a matter of right, the authorities cited go but a little way, to shew that the discretion of the court, who is asked a continuance, is the arbitrary discretion, subject to no control, which the plaintiff’s counsel insists upon, and not the legal and sound discretion, the exercise of which is a matter of revision and control.

1. In the first case, we are informed, the court of king’s bench grants no continuance in favor of the plaintiff, in a penal action. Admitting this, justice does not appear to require, that the denial should absolutely be a ground of relief, in another court; while the plaintiff may (with some expense indeed) avert the consequent evil, by submitting to a nonsuit.

5. The case, cited from the court of common pleas, shews only, that it is the practice of that court, (and the practice is the law of the court) to deny a continuance to a party who alleges the slavery of his opponent, and the court appears to have acted upon a known and previously fixed principle, by which its conduct was susceptible of being tested, rather than to have been guided by an arbitrary discretion, which knows no rule.

3. M'Nally informs us, that the postponing of a trial is not a matter of right, either when the application is made on the part of the prisoner, or on the part of the crown; he adds, for in either case the court, in its discretion, even tho’ an affidavit be made, may refuse or grant it. Here we are informed, why the party’s claim is not a matter of rigth, viz. because notwithstanding the affidavit, the court is not absolutely bound, but may in its discretion refuse or grant the continuance.

4. Lastly, in the case of Rex vs. D' Eon, we are informed by Lord Mansfield, of the cases in which the court will, in its discretion, withhold its consent, after the ordinary affidavit is produced, viz. when suspicion arises from the nature of the question, or from contrary affidavits, and the court, having examined into the ground on which the delay is asked, thinks it rust not to allow it, notwithstanding the vit.

Opinions of the supreme court of the U. S. have also been introduced. C. J. Marshall, in 7 the case of Woods & al. vs. Young, 4 Cranch, 238, declared the impression of that court to be, that the refusal to continue a cause, cannot be assigned for error, asking whether the party had by law, a right to continue a cause in any case? Whether this was not merely a matter of favor and discretion? And in the case of Mar. Ins. co. vs. Hogson, the same court said, that on the refusal to continue a cause, the party could not be relieved by a writ of error. 6 Cranch 206.

The refusal of relief, in these two cases, was obviously grounded on a technical reason: that the party could not be relieved by a writ of error.

A writ of error, says Blackstone, is brought to correct an error, appearing on the record: the reasons which, induce the court to deny or grant a continuance, are often matters dehors, out of the record. The discretion of the inferior court is principally regulated in such a case by particular circumstances, of which the record affords no trace.

A decision of the superior court of the late Territory of Orleans, in the case of the Territory vs. Nugent, has been referred to. There the court denied the continuance to the defendant, on an affidavit which it admitted was sufficiently strong. But the case shews the particular and cogent circumstances, which satisfied the court, that delay was the main object of the applicant. 1 Martin, 108.

We find nothing in the above cases to warrant the position, that the discretion of the court, in granting a continuance, is an arbitrary discretion, the ill exercise of which is not to be remedied by appeal: they only shew that there is no remedy upon a writ of error.

In ordinary cases, depending in the superior courts of Englang, a trial takes place at Nisi prius, it is there that a motion for a continuance: is made, and finally pronounced upon. The judge there exercises his discretion, but if he err in doing so—the party may be relieved on a motion for a new trial in the court, to which the postea is returned. If” said Lord Mansfield, in refusing the continuance in the case of Rex vs. D’Eon, “it should appear upon “the case proved at the trial, that the defen“dant was prejudiced by refusing this delay, the court would set it right by granting a new "trial.” Here then is a check provided, a remedy in case the discretion be incorrectly exercised.

In Virginia, if the party thinks himself aggrieved, by the denial of a continuance, the law has provided a remedy. The manner in which the discretion of the judge, who overruled his motion, exercised his discretion, is an object of inquiry. The principle is recognised, that in granting or refusing a continuance, the court ought to exercise a sound discretion, and if a party be ruled into a trial, when it appears from the facts stated in the bill of exceptions, that he was entitled to a continuance, the judgment will be reversed, even on a writ of error.

In every case in which the law leaves any thing to the discretion of an officer or a court, a sound and legal discretion is understood, not an arbitrary one.

New trials are left to the discretion of a court, "It is” says C. J. Glynn, in the discretion of the court, in some cases to grant a new trial,” but this must be u judicial and not an arbitrary discretion. Sty. 466. This declaration is the more important, that the case in which it was made, is said to be the first in which a new trial was granted, 3 Morgan’s essays, 114.

Discretion, says Lord Cook, is discerning per legem quid sit justum. Discretion is a science and understanding of distinguishing and discerning, between falsehood and truth, and not to do according to arbitrary will, and private affection, Rooke's case, 5 Co. 100 a. See on this subject, what was said by Lord Mansfield, in the case of Rex vs. Young & al. 1 Burrows, 560-2.

In the state of Pennsylvania, the discretion of a judge of the circuit court, in granting a new trial, is subject to the revision of the supreme court on an appeal. Byrd vs. Lessee of Darndall, 2 Binney, 9.

In the state of New-York, the supreme court held that an adjournment of a sale, to a different place, is a matter of discretion with the constable, and the question must always be wether that discretion has been abused. Whereupon they inquired into the conduct of the constable in the exercise of his discretion. Platt vs. Stone, 5 Johnson, 347.

In the case of Wanderville vs. Wilson, 5 Cranch, 17, C. J. Marshall observed that permitting amendments is a matter of discretion, but added he did not mean to say that a court may in all cases permit or refuse amendment without control.

We conclude that nothing in the books cited by the plaintiff’s counsel shews that the discretion of the court in granting or refusing a continuance is any thing else "than a legal, a judicial discretion, which is not examinable elsewere, altho' it is certainly shewn that, in England and the courts of the United States, there is no remedy, in such a case, by a writ of error.

Approaching, therefore, the case cleared from any obstable thrown in the way by decisions of English courts—or of the courts of the American states: we find it laid down as a maxim of Roman jurisprudence, which still prevails in Spain, that the judge ad quem will correct the errorS of the judge a quo, even in interlocutory judgments or orders, whenever they occasion gravamen irreparabile—and the statute of this state (1813) authorises this court to remand the case, for a new trial, whenever justice appeal’s to require it. On this part of the case, we have only to consider this abstract question: Can the improper denial of a continuance occasion, in the words of the Roman law, irreparabile gravamen to the party? And, in those of our statute: Will not justice sometimes require that a cause should be remanded, for a new trial, when the judge a quo denied a continuance?

This abstract question we declare ourselves unable to answer in the negative. We find it answered, in the affirmative, by able judges in England and in the United States, and we find no judge any where answer it in the negative: and we conclude that this court may, and ought to, inquire into the manner, in which the judge a quo exercised the discretion, committed to him, in allowing or refusing the continuance of a case, whenever the party appears thereby to suffer an irreparable injury.

In the present case, we are of opinion that the district judge exercised his discretion soundly and legally, and properly denied the continuance of the cause.

Years had elapsed since the inception of the suit, and the document, for the want of which the cause was sought to he continued, ought much earlier to have been looked for.

The motion to remand this cause must therefore be overruled.  