We think that the affidavit for a continuance in this cause fully complied with the statute, in the requirements of an application for a first continuance in civil causes, and that the court erred in refusing to grant the same. We are unable to see the force of the reasons given by the court for overruling the motion, and more especially in view of the verdict and judgment rendered in this case. The judge makes-this endorsement upon the bill of exceptions to the ruling of the court: “The application for a continuance was overruled, because, in my opinion, the answer of defendants presented no defense.”
A little consideration of the pleadings in this case, we think, will readily and clearly show the error of the ruling of the court on the application. The defendant in error brought this suit against the plaintiffs in error for the recovery of about fourteen hundred dollars, alleged to have been deposited with the defendants below for safe keeping. And in his petition, he alleges the receipt of the money by defendants, and a promise-to deliver the same up on demand. He charges a demand made, and a refusal to deliver the deposit, or any part thereof; and he further charges that defendants-had unlawfully, fraudulently and feloniously embezzled his money and property, whereby he had suffered ten thousand dollars damages; and prays for judgment for the amount of money deposited, for in terest, and for direct, consequential and punitory damages to a large amount. The defendants filed a general demurrer and general denial, and answered by sundry frivolous special defenses, which the court, on motion being made, properly struck out. But the de*446fendants’ general denial was left, and under that they had a right to introduce evidence as to the time when interest should begin, as the plaintiff certainly, under his own pleading, could not legally claim interest until demand made; neither was he entitled to sue for the amount deposited until he had made a demand for the same; and the defendants had a right, under their general denial, to be heard by their witnesses in regard to that fact, and were therefore entitled to a continuance under and by virtue of their affidavit for that purpose.
But there was a specific charge of embezzlement in plaintiff’s petition, which is a crime punishable, under the law, by imprisonment, and for which plaintiff prayed a judgment for heavy damages, and to this •charge defendants filed a general denial, the only proper answer to set up perfect innocence. Under a general denial they most certainly had the right to prove that they never received any deposit; or that no ■demand had been made for the money; or that they had delivered the money deposited, or had offered to deliver the same to the depositor, and thereby acquit themselves of the grave charge imputed to them. And therefore they had a right to a continuance under their affidavit.
The questions raised in the pleadings, and not presented in the assignment of errors, we do not choose now to consider. There was, therefore, error in the ruling of the court in refusing a continuance, and in refusing to grant a new trial; and the judgment is reversed and the cause remanded.
Reversed and remanded.