
    No. 987.
    John Rist v. A. L. Abbott.
    the matter of continuances for the most part addresses itself to the sound, legal discretion of the District Court, to be judged of according to the circumstances presented.
    A PPEAL from the Third District Court of New Orleans, Fellowes, J.
    
      John McKee¿ for plaintiff and appellee.
    
      Race, Foster & F. T. Merriele, for defendant and appellant.
   Taliaeeeeo, J.

The plaintiff sues the defendant on a promissory note for $2,000, dated November 30,1859, and made payable to the defendant’s own order forty months after date, with interest, at eight per cent, per annum from date, payable at the Citizens’ Bank, in New Orleans. A Credit of six hundred dollars was entered on the note for a payment of that amount on the 2d November, 1865. The payment of the note is secured by mortgage on land, in the parish of Natchitoches.

The only defence is that set up by exception to the prematurity of the action, on the ground that the plaintiff specially agreed with the defendant to extend the time of payment twelve months, from November, Í805, on condition that defendant payed at the time the extension was agreed upon, the sum of six hundred dollars. The defendant avers that he paid the six hundred dollars as stipulated, and that the plaintiff, in violation df the agreement, has instituted this suit. Upon affidavit made by defendant, he obtained a continuance, or delay of thirty-five days, to take the testimony under commission of a witness residing in the city of New York, The delay expired without the testimony of the witness being obtained. On the 14th of April, 1866, (the order for a commission to issue, having been issued on the 23d February preceding), the exception was overruled, and the defendant filed an answer containing, in substance, only the matter set up in the exception. When the exception was called up for trial, the defendant moved the Court to continue the case a day or two, to await the return of his attorney, then absent from the parish, in order that he might make affidavit of the use of proper diligence, without effect to procure the testimony desired, within the delay granted, and thereby be enabled to apply to the Court for further time to get the evidence. This was refused, and to the refusal the defendant reserved a bill of exceptions, which is embodied in the record. The matter of continuances, for the most part, addresses itself to the sound legal discretion of the Court, to be judged of according to the circumstances presented. The Judge of the lower Court saw no sufficient reasons for a continuance, and we incline to agree with him in that opinion. We do not think this case a proper one in which to award damages for a frivolous appeal.

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