
    
      ERWIN’S EXECUTORS vs. TRION
    
    ArPEAU FROM THE COURT OF THE FOURTH DISTRICT, THE JUDGE OF THE THIRD PRESIDING.
    A continuance was properly denied where the party appeared generally, to have neglected the means of preparing his defence — and under such circumstances, the Court did not err in refusing a new trial.
    This suit was instituted on the 8th April, 1830. At the ensuing June term, it was continued by the defendant, who obtained an order to take the testimony of a witness residing in the State of Mississippi. On the 13th November, lite filed his interrogatories, and on the 17th, caused them to be served on the plaintiffs, with notice that on the 28th he would take the testimony of the witness.
    On the 14th December, the cause was called up for trial, when a continuance was prayed for on the affidavit of counsel: — “That owing to the absence of the Sheriff and the sickness of his Deputy, service could not be made of the interrogatories until the.17th, which was toojate; but affiant believed, that could the service have been made on the 13th, which defendant vainly attempted to affect, there would have been sufficient time for the return of the Commission. The continuance was refused, the cause tried, and a judgment rendered for the plaintiffs. The defendant prayed for a new trial, on affidavit, stating that he had attended during the term for the trial of the cause, and upon a temporary adjournment, had returned home — That he was prevented from attending, on the day of trial, from the badness of the roads, inclemency of the weather, and a belief that Court would not meet. The Court refused a new trial, and the defendant appealed.
    
      A continuance was properly denied where the par ty appeared generally to have neglected the means of preparing his defence — and under such circumstances, the Court did not err in refusing a new trial.
    
      Heriart, for appellant.
    Eastern District
    
      April 1831.
    
      Pierce, for Appellee.
   Martin, J.,

delivered the opinion of the Court.

The defendants sued for the price of a plantation and slaves, purchased by an authentice act, from the plaintiff’s testator, pleaded that the contract, sued upon, had by a posterior act of the vendor, been new modelled and changed, and the terms of payment extended, and he bound himself to receive in payment a certain judicial mortgage. The premises are burthened with several mortgages, the can-celling of which was to be obtained before payment was to be made, by the defendant, and he is entitled to a dimin-uation of price on several of the slaves, who are afflicted with redhibitory diseases — and the plaintiffs have refused to receive the judicial mortgage, obtain the cancelling of the mortgage, or to allow any diminuation of, price.

There was judgment for the plaintiffs, and the defendant appealed, after an unsuccessful attempt to obtain anew trial.

The case has been .submitted to us without any argument, and the appellant has not filed any points.

The record shews that he offered no evidence in support of his plea. The new trial was asked on an affidavit of the defendant having been prevented by bad weather, and his belief that the court would not meet, from attending to move for a continuance. As the district court refused it: the new trial, and the party appears to have greatly neglected the means of preparing his defence, we cannot say the new trial was improperly denied.

It 'is, therefore, ordered, adjudged and decreed, that the judgment of the district court be affirmed with costs.  