This is a suit on a promissory note. The defendant, JR. At Barrow, avers that it was given in renewal of another held against him by the plaintiff, for a larger sum, which had been reduced by partial payments; that, by an error in the calculation of interest, it was given for a much larger amount than that actually due on the original note. He further avers, that he has just reasons to believe that it has been paid by B. Barrow, the other defendant ; and that this suit was instituted without the knowledge and consent of the plaintiff, as he believes.
At the April term, 1853, the defendant probed the conscience of his adversary, by propounding to him interrogations on facts and articles. As the plaintiff was absent, this produced a continuance of the cause. At the June term— not a jury term — -the defendant having prayed for a trial by jury, which was granted, the cause was consequently again continued. At the December term, after having unsuccessfully challenged the second array of jurors summoned for the term, the defendant moved for a continuance on his affidavit, which was refused by the District Judge, on the ground that due diligence had not been shown. The trial by jury was then waived, and the cause submitted. The answers to the interrogatories propounded to the plaintiff, were filed on the Tth of December, the day fixed for the trial of the cause.
It is urged by the defendant, that the continuance was incorrectly refused. He asks that the judgment be reversed and the cause remanded, in order that he may exercise his legal rights.
After mature consideration of all the circumstances, we are not prepared to say that the District Judge erred in refusing to grant the continuance.
The appellee prays for damages, on the ground that tho appeal is frivolous and taken for delay. We are not satisfied, from the evidence disclosed by the record, that such is the case. On the merits, no error has been suggested, neither do we find any.
It is therefore ordered, adjudged and decreed, that the judgment of the District Court be affirmed, with costs in both courts.