Lacy, Judge,
delivered the opinion of the Court:
This cause comes up by appeal taken by the defendant, from the judgment of the court below. The assignment of errors present these three questions: First. Did the Circuit Court err, in refusing to quash the writ? Secondly. In overruling the appellant’s motion for a continuance of the cause? And lastly, in not granting him a new trial? That .the court below decided rightly in refusing to quash the writ, there can be no doubt, for after the motion was made and overruled, the appellant appeared and pleaded to the action, and his appearance and plea cured whatever defects there might be to the writ, if indeed any existed. The object of the writ is to bring the party into court, and if he appeared and pleaded to a defective writ, its insufficiency is cured, and so it has been frequently ruled by this court.
It is equally clear that the court below did not err in refusing to grant a continuance of the cause, on the appellant’s motion and affidavit. The record proves that the cause was continued at the December term, 1838, on the motion and affidavit of the appellant, and that an order was then entered by consent, for the parties to take depositions generally.
The affidavit that was then filed and sworn to, shows that the continuance at the December term, 1838, was -asked for and obtained on account of the absence and materiality of the evidence of James Wise and James F. Ellis, two of the defendant’s witnesses. The affidavit which was filed and sworn to at the May term, 1839, shows that the motion which was made for a second continuance of the cause, was also asked for on account of the materiality and absence, of the testimony of James F. Ellis alone. The cause was once continued for James F. Ellis’ testimony, and the second continuance was refused on the appellant’s motion for the same identical evidence. The statute in regard to the subject of continuances declares, “ that no suit shall be twice continued for the same cause.” Rev. Statutes 631, section 85. The affidavit in behalf of the appellant in error for a second continuance, is defective in no other material point. It does not state as the statute requires, “ that the appellant had reason to believe that he could procure the attendance of the witnesses by/the next term of the court, or that he could procure his testimony by that term.” This statement the act requires upon every application for a continuance, and if the party in his affidavit fails to make it, then he has no right to a continuance. Revised Statutes, page 631, section 86.
The affidavit alleges that the appellant expects to prove by the absent witnesses, an offset of two hundred dollars against the appellees’ demand. This statement, according to the practice of the English, and in most, if not all of the American courts, would be wholly insufficient to entitle a party to a continuance. These expectations may be founded on slight and unreasonable grounds, and such as by no means amount to a firm1 conviction or belief, that he can prove the facts set forth in his affidavit, which the common law requires in every instance upon application for a continuance. Smalley v. Anderson, 4 Mon. 369; Owens v. Starr, 2 Litt. 232.
But our statute seems to have changed the whole course of the common law, as well as the practice of most if not all the courts of our own country; for it only requires the appellant to state that he expects to be able to prove the facts contained in his affidavit, by. the absent witness. The affidavit in this particular must therefore be considered as correct, for it strictly complies with the provisions of our statute, which is all it can be expected to do.
It will be recollected, that at the December term, 1838, an order was made, giving the parties’ leave to take depositions generally, and that the cause was then continued on motion of the appellant, for the want of JamesF. Ellis’ testimony; and that the case was not finally tried and decided until the May term, 1839. The appellant in error, then, had sufficient time to have procured the attendance of the witness, or his testimony, if he had used due diligence in preparing his case for trial. We hold the true rule on this subject to be, that he who seeks to relieve himself from the presumption of culpapble negligence, is bound to show such state of facts or circumstances, as will prove he has used due diligence, or as will take his case out of the legal inference which stands against him. In the present instance the appellant has wholly failed to slate in his affidavit any such facts ■or circumstances as will relieve him from the presumption of the rule. He shows no reasonable excuse why he did not take the deposition of the absent witness before he applied to do so, which was only two or three weeks prior to the commencement of the trial. There is no unavoidable circumstance alleged which prevented him. The appellant surely does not show a reasonable excuse for not using due diligence, when he alleges, that at the time he applied to take the witness’s deposition, he had left his former residence, and had removed to a remote part of Arkansas county. We are not positively informed when this application was made to take the deposition. Why is the fact not stated, and the exact time given? The presumption is, that but a short time before the trial, and that reference is conclusively sustained by the record, why did not the appellant apply to take the witness’s-deposition before? In failing to do so, he must therefore be considered as guilty of culpable negligence.
Again, the affidavit alleges, that the appellant was not apprised of the witness’s present residence, until two or three weeks before the commencement of the trial. It gives no excuse why he was not apprised of his present residence previous to that time, nor does he show that he used diligent search and inquiry to find it out. He certainly was not entitled to a second continuance unless he proved that he had diligently searched for and inquired after the residence of the witness, and that he could not possibly find out where he resided, nor could he by any practicable means in his power procure his testimony. In failing to state these important and essential facts, the affidavit is totally insufficient to authorize a suit, much less a second continuance, and therefore the court below acted properly in refusing the continuance.
It has been correctly argued by the counsel for the appellant, that the power to grant or refuse continuancy, is a sound, discretionary, legal power, inherent in all courts, and given for the express purpose of preventing delay and promoting the ends of justice; and that should the Circuit Court, in the exercise of its discretionary power, capriciously or arbitrarily sport away important rights belonging to either party, that their decisions and judgment would be examined in this court, and liable to be corrected on appeal or in writ of error. See Revised Statutes, 631; Rex v. D'Eon, 3 Burr. 1514; 1 W. Black. 514, S. C.; Ogden v. Payne, 5 Cowen 15; The People v. Vermilyea, 7 Cowen 388, 395; Hooker v. Rogers, 6 Cowen 577. This, is no doubt the correct rule on. the subject; but the case under consideration does not fall within the principle stated, and therefore cannot be benelitted by it.
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Lacy, Judge,
delivered the opinion of the Court:
This cause comes up by appeal taken by the defendant, from the judgment of the court below. The assignment of errors present these three questions: First. Did the Circuit Court err, in refusing to quash the writ? Secondly. In overruling the appellant’s motion for a continuance of the cause? And lastly, in not granting him a new trial? That .the court below decided rightly in refusing to quash the writ, there can be no doubt, for after the motion was made and overruled, the appellant appeared and pleaded to the action, and his appearance and plea cured whatever defects there might be to the writ, if indeed any existed. The object of the writ is to bring the party into court, and if he appeared and pleaded to a defective writ, its insufficiency is cured, and so it has been frequently ruled by this court.
It is equally clear that the court below did not err in refusing to grant a continuance of the cause, on the appellant’s motion and affidavit. The record proves that the cause was continued at the December term, 1838, on the motion and affidavit of the appellant, and that an order was then entered by consent, for the parties to take depositions generally.
The affidavit that was then filed and sworn to, shows that the continuance at the December term, 1838, was -asked for and obtained on account of the absence and materiality of the evidence of James Wise and James F. Ellis, two of the defendant’s witnesses. The affidavit which was filed and sworn to at the May term, 1839, shows that the motion which was made for a second continuance of the cause, was also asked for on account of the materiality and absence, of the testimony of James F. Ellis alone. The cause was once continued for James F. Ellis’ testimony, and the second continuance was refused on the appellant’s motion for the same identical evidence. The statute in regard to the subject of continuances declares, “ that no suit shall be twice continued for the same cause.” Rev. Statutes 631, section 85. The affidavit in behalf of the appellant in error for a second continuance, is defective in no other material point. It does not state as the statute requires, “ that the appellant had reason to believe that he could procure the attendance of the witnesses by/the next term of the court, or that he could procure his testimony by that term.” This statement the act requires upon every application for a continuance, and if the party in his affidavit fails to make it, then he has no right to a continuance. Revised Statutes, page 631, section 86.
The affidavit alleges that the appellant expects to prove by the absent witnesses, an offset of two hundred dollars against the appellees’ demand. This statement, according to the practice of the English, and in most, if not all of the American courts, would be wholly insufficient to entitle a party to a continuance. These expectations may be founded on slight and unreasonable grounds, and such as by no means amount to a firm1 conviction or belief, that he can prove the facts set forth in his affidavit, which the common law requires in every instance upon application for a continuance. Smalley v. Anderson, 4 Mon. 369; Owens v. Starr, 2 Litt. 232.
But our statute seems to have changed the whole course of the common law, as well as the practice of most if not all the courts of our own country; for it only requires the appellant to state that he expects to be able to prove the facts contained in his affidavit, by. the absent witness. The affidavit in this particular must therefore be considered as correct, for it strictly complies with the provisions of our statute, which is all it can be expected to do.
It will be recollected, that at the December term, 1838, an order was made, giving the parties’ leave to take depositions generally, and that the cause was then continued on motion of the appellant, for the want of JamesF. Ellis’ testimony; and that the case was not finally tried and decided until the May term, 1839. The appellant in error, then, had sufficient time to have procured the attendance of the witness, or his testimony, if he had used due diligence in preparing his case for trial. We hold the true rule on this subject to be, that he who seeks to relieve himself from the presumption of culpapble negligence, is bound to show such state of facts or circumstances, as will prove he has used due diligence, or as will take his case out of the legal inference which stands against him. In the present instance the appellant has wholly failed to slate in his affidavit any such facts ■or circumstances as will relieve him from the presumption of the rule. He shows no reasonable excuse why he did not take the deposition of the absent witness before he applied to do so, which was only two or three weeks prior to the commencement of the trial. There is no unavoidable circumstance alleged which prevented him. The appellant surely does not show a reasonable excuse for not using due diligence, when he alleges, that at the time he applied to take the witness’s deposition, he had left his former residence, and had removed to a remote part of Arkansas county. We are not positively informed when this application was made to take the deposition. Why is the fact not stated, and the exact time given? The presumption is, that but a short time before the trial, and that reference is conclusively sustained by the record, why did not the appellant apply to take the witness’s-deposition before? In failing to do so, he must therefore be considered as guilty of culpable negligence.
Again, the affidavit alleges, that the appellant was not apprised of the witness’s present residence, until two or three weeks before the commencement of the trial. It gives no excuse why he was not apprised of his present residence previous to that time, nor does he show that he used diligent search and inquiry to find it out. He certainly was not entitled to a second continuance unless he proved that he had diligently searched for and inquired after the residence of the witness, and that he could not possibly find out where he resided, nor could he by any practicable means in his power procure his testimony. In failing to state these important and essential facts, the affidavit is totally insufficient to authorize a suit, much less a second continuance, and therefore the court below acted properly in refusing the continuance.
It has been correctly argued by the counsel for the appellant, that the power to grant or refuse continuancy, is a sound, discretionary, legal power, inherent in all courts, and given for the express purpose of preventing delay and promoting the ends of justice; and that should the Circuit Court, in the exercise of its discretionary power, capriciously or arbitrarily sport away important rights belonging to either party, that their decisions and judgment would be examined in this court, and liable to be corrected on appeal or in writ of error. See Revised Statutes, 631; Rex v. D'Eon, 3 Burr. 1514; 1 W. Black. 514, S. C.; Ogden v. Payne, 5 Cowen 15; The People v. Vermilyea, 7 Cowen 388, 395; Hooker v. Rogers, 6 Cowen 577. This, is no doubt the correct rule on. the subject; but the case under consideration does not fall within the principle stated, and therefore cannot be benelitted by it. It may be proper here to remark, that this court would not reverse a decision or judgment below, for merely granting or refusing a continuance, unless it clearly and positively appears from the face of the record, that the court who decided the cause had been guilty of a palpable and manifest violation of public duty, seriously prejudicing the rights of the parties complaining.
The only remaining point to be determined is, did the Circuit Court err in refusing a new trial, on the ground of newly discovered evidence on the trial. The doctrine upon this subject is well settled, both upon reason and authority, and we will now fully state it. In order to entitle a party to a new trial, on the ground of newly discovered evidence since the former trial, the affidavit in the case must prove, 1st, the names of the witnesses whose testimony has been discovered, and the facts expected to be established by them; 2d, that the facts and circumstances as proved, must show that the applicant has used due diligence in preparing his case for trial; 3d, that the facts and circumstances newly discovered,'have come to his knowledge since the determination of the trial, and they must be such as if adduced on the trial were competent to prove the issue, and would probably have changed the verdict; and 4th, that the evidence discovered is not cumulative of that previously relied on, and that it will tend to prove material facts, which were not put directly in issue on the former trial.
These principles are well settled by a series of broken decisions, which is perfectly conclusive on the point. Ewing v. Price, 3 J. J. Marshall, 520; Daniel v. Daniel,2 J. J. Marshall 52; Wells v. Phelps, 4 Bibb 563; Smith v. Brush et al., 8 J. R. 84; Pike v. Evans, 15 J. R. 210; The People v. Superior Court of N. Y., 10 Wend. 295; Gardner v. Mitchell, 6 Pick. 114.
The application of the rule as here laid down, will test the question now in controversy. The bill of exceptions in this case fails to set out any portion of the evidence that was adduced upon the trial. ' The legal presumption, then, is in favor of the verdict and judgment below, and they cannot be disturbed unless it satisfactorily appear, affirmatively, that they were evidently and materially erroneous. The affidavits filed in support of that motion for a new-trial, do not prove that the defendant below used any exertions, or even attempted to prove the evidence of the newly discovered testimony on the trial.
The appellant’s affidavit does not show that he used due diligence to procure their attendance or testimony; consequently, he is not entitled to the benefit of the evidence which he might have discovered before the trial, but which has come to his knowledge since, merely because he made an effort or exertion to procure it before that time.
The affidavit is fatally defective in another point of view.It wholly fails to establish the position that the newly discovered evidence is not cumulative, or that it does not put directly in issue the same facts that were determined by the jury. The presumption is, that it is cumulative of the evidence adduced on the trial, and there is nothing on the record to contradict or overdraw this presumption. It must then stand as full proof on that point, and it clearly justifies the conclusion of the newly discovered evidence, upon rthe ground of being communicative testimony. Even if the newly discovered evidence had been introduced on the trial, we are authorized to presume it would materially have changed or altered the verdict.
' It is true, that in the statement of the witnesses above newly discovered, evidence is filed in support of the appellant’s motion for a new trial, the process of the work and labor sued for, is set down at a much lower rate than is charged in the plaintiff’s bill. But that statement fails to show that the witnesses were carpenters by trade, or that they are judges of the prices of such work and labor. Besides, if their testimony had been adduced upon the trial, it might and probably would have been disproved by the evidence in the case. This is the legal inference following the verdict and judgment, and the appellant cannot except from its consequences and effects, unless he shows affirmatively by spreading the whole testimony upon the record, that such would not have been the fact. In failing to rebut and disprove this presumption, he stands bound by it, and therefore this newly discovered evidence cannot avail any thing on his motion for a new trial. Upon each and all of these grounds, it is perfectly manifest, that the court below-decided correctly, in refusing to grant the appellant a new trial. The decision and judgment of the Circuit Court must therefore be affirmed, with costs.