Bryce & Lyman v. Jones ( 1873 )

Walker, J.

In the case of Hyde v. The State, 16 Texas 453, Mr. Justice Wheeler elaborately reviewed the authorities, and laid down the rule that counter-affidavits are admissible to disprove due diligence.

We have long felt the necessity of the application of this rule in second and subsequent applications under our statute. If the affidavit for continuance remains uncontradicted, it forces the court to a continuance of the cause in many cases where the suspicion of bad faith and want of diligence is irresistible.

After the postponement of the cause in this case from 12 o’clock until the sitting of the court on the following day, the party demanding the witness should have resorted to an attachment. But the fees of the witness had not been tendered, it will be answered. This is not a good answer to the objection, for if the party wishes to avail himself of all the necessary process of the court to bring in his witnesses, he should place himself in a condition so to do, and if he cannot have an attachment without first tendering the witness fees, the fees should be tendered. (See Article 3720, Paschal’s Digest.) This article is analogous to the statute of 5th Eliz., 0. 9, Sec. 12; and we believe the rule we now lay down is strictly in accordance with the practice of the English courts under that statute. (1 G-reenleaf, Sec. 310; 2 Phil. Ev., 370.) After a careful examination of this case, we think our former opinion was correct, and we affirm it.

Affirmed.