Hooper v. Hyams

Martin, J. The plaintiff obtained an injunction to stay proceed- • ihgs oix an; order of seizure and sale, on the ground that one of the slaves which he had: purchased, was, at the time, afflicted' with a redhibitory malady, the dropsy, of which he afterwards died". He prayed that the sale might he annulled and set aside as to that slave, orthat he might have a deduction from the price he agreed to pay for the slaves he bought. The defendant denied the existence of the malady, and averred that if it did exist, it was not to his knowledge, or to'that of the persons entitled to the succession. The injunction was dissolved, and the plaintiff and his surety appealed. Our attention is arrested on a hill of exceptions taken to the opinion of the' court, refusing leave to the plaintiff to amend his petition by a prayer fora jury, no jury being in attendance. It does not appear to us that the court erred. In the case of Davis’ Heirs v. Prevost, 6 Martin, N. S., 265, we held that a jury may he prayed for in an amended answer, but it is in the discretion of the court to permit such answer to he filed; and in the case of Green v. Boudurant, 7 Id., 230, we held, that a jury is properly refused, when the jurors summoned for the term are discharged, and the granting of. one would have delayed the trial of the cause a whole term. A second hill of exceptions was taken to the opinion of the court, [91] refusing a continuance on the plaintiff’s affidavit of the indisposition of his principal counsel, without whose aid he could not safely go to trial, his other counsel not being sufficiently informed of the facts of the ease, and there not being sufficient time to give him the necessary information. The affidavit concluded with the other averments required by law in such a case. We do not think the court erred; the case had been continued several times, and once on an affidavit perfectly similar. It.was not alleged that the absent counsel was in possession of papers necessary to be produced. The case appears to be a simple one from the pleadings, depending-principally on a single question of fact. A close examination of the testimony, has left on us the impression that the court correctly gave judgment for the defendant. Judgment affirmed.