Johnson v. Martin

By the Court.

Benning, J.,

delivering the opinion.

Was the court below right in refusing the continuance ?

That depends on this — was the matter which the defendant, the party moving for the continuance, expected to prove by either of the absent witnesses, pertinent to any of the issues ?

Among the issues was, it seems, one on a plea of payment, and one on a plea of set-off.

The matter which the defendant in the case, Johnson, expected to prove by Phillips, was what is expressed in the following words of his affidavit, viz : “ That Egbert P. Dauiel was the agent of the plaintiff, and as such agent of the plaintiff, received from the defendant notes to the amount of about five hundred and fifty-eight dollars, which he was to apply to the note sued on by the plaintiff in this case, which the defendant relies on in his defence, as payment to that extent.”

As we interpret these words, the meaning is, that the “ notes” turned over, were to go in payment of the note sued on. It is not said that the proceeds of the notes were to be applied to the payment of the note sued on, but that the notes themselves were to be so applied.

And if the notes were to be applied in payment, there was a payment by them, to the extent of what they amounted to; or a right to set them off against the note sued on.

Consequently, this matter was pertinent to,one, if not to both of the issues aforesaid.

And we think that the matter was set forth in the showing for the continuance, with sufficient certainty. The evidence, if it had been present, would have had sufficient certainty about it, to require its admission.

We think, then, that the court below was not right in refusing the continuance.

Judgment reversed.