1854. the damages. The Court erred in this, according to nu- May Term, J. S. Buckles and W. March, for the plaintiffs. V. THE STATE. ROBERTSON v. STANDART and Another. APPEAL from the Fountain Circuit Court. Per Curiam.-Assumpsit upon a promissory note. Judgment for the plaintiff below. The only error complained of is the refusal of the Court to continue the cause upon affidavit. The case was governed by the act of 1843. There was no error in this. The affidavit was palpably defective. The judgment is affirmed, with 1 per cent. damages and costs. D. Newell, for the appellant. H. S. Lane and S. C. Willson, for the appellees. Thursday, LEWADAG V. THE STATE. ERROR to the Jefferson Circuit Court. Per Curiam.-Indictment for retailing, found in 1850. The judgment is affirmed with costs. Thursday, June 15. WEATHERS and Others v. WEATHERS. It was error to appoint.commissioners to assign dower, upon a petition under the R. S. 1843, before the defendants were summoned. ERROR to the Jasper Probate Court. PERKINS, J.-Petition for dower. Petition granted below. The Court proceeded in the cause and appointed commissioners to assign dower without notice to the heirs. This was erroneous. The statute under which the proceeding was had (R. S. 1843, pp. 804, 805) provided for a trial, upon notice to the defendants, upon the question of the right to dower, before the appointment of commissioners, &c., and their appointment without such notice and trial was erroneous, at all events, where such trial was not waived. Per Curiam.-The decree and proceedings are reversed with costs, back to the petition, with leave to the defendants to plead, &c. J. Pettit, S. A. Huff, J. M. La Rue, and B. O. Deming, for the plaintiffs. Thursday, HANNA V. COUNTRYMAN. To authorize the proceeding, under the R. S. 1843, before two justices of the peace, to obtain possession of real estate, it was not necessary to show that the relation of landlord and tenant existed between the parties. ERROR to the Allen Circuit Court. PERKINS, J.-Proceeding before two justices to obtain possession of real estate. Appeal to the Circuit Court. The case was there dismissed on motion, for want of jurisdiction of the justices, it not disclosing that the relation of landlord and tenant existed between the parties. This is the error alleged. May Term, 1854. HANNA V. The ruling of the Court below was in accordance with the decision of this Court upon the statute of 1838 (1); but the phraseology of the statute of 1843, under which this case arose, differs materially from that of 1838, and, COUNTRYwe think, authorized justices of the peace to take jurisdiction, regardless of the question of tenancy. See R. S. 1843, pp. 817, 818. The statute of 1843 being now superseded by that of 1852, further criticism upon it would be here misplaced. Per Curiam.-The judgment is reversed with costs. Cause remanded, &c. R. Brackenridge, Jr., for the plaintiff. J. L. Worden, for the defendant. MAN. (1) See 8 Blackf. 222. END OF MAY TERM, 1854. VOL. V.-18 CASES ARGUED AND DETERMINED IN THE SUPREME COURT OF JUDICATURE OF THE STATE OF INDIANA, AT INDIANAPOLIS, NOVEMBER TERM, 1854, IN THE THIRTY- Monday, ESPY V. THE STATE BANK. An affidavit for a continuance may be made by an agent of the party apply. ing, without accounting for the absence of the principal, or giving any other reason why it is not made by him; and the circumstance that the agent is not a party to the record, makes no difference. The State Bank brought suit to recover the full amount of a bill of exchange. The defendant applied for a continuance to procure evidence, by the testimony of an absent witness, of his having paid part of the bill to the bank. Held, that it was no answer to the application, that if the payment was in fact made, the officers of the bank, or some of them, must have known it, and could be made witnesses. APPEAL from the Ohio Circuit Court. STUART, J.-Assumpsit by the bank against Espy, on a bill of exchange. Espy claimed a credit of 400 dollars, which the bank refused to allow. He then, by agent, filed his affidavit for a continuance, stating that he could prove by one Rogers, 1854. V. BANK. the payment to the branch bank at Madison, on the bill of Nov. Term, exchange sued upon, of the sum of 400 dollars; that the payment was so received by the bank; that he knew of no other witness by whom he could prove the same fact so THE STATE fully; that the witness was, or had been, in California, and at the time of making the affidavit was believed to be on his way home, so that his attendance as a witness at the next term might be reasonably expected; and that the affidavit was not made for delay, &c.; showing also the diligence used, &c. With the affidavit the general issue was filed. The Court overruled the motion for a continuance. Espy excepted. Trial by the Court, and judgment for the bank for 1,394 dollars and 67 cents. The only question presented by the record is, whether the motion for a continuance was correctly overruled. In mere money demands, like the one before us, such applications are necessarily regarded with more or less distrust, and closely scrutinized. The reason is obvious. If treated with indulgence, they may be readily made instruments to baffle and delay the collection of just debts. On the other hand, the Courts should not hold debtors so strictly as to give an exorbitant creditor undue advantage. Several objections are taken to the sufficiency of the affidavit, only two of which it is deemed material to notice. 1. It is objected that the affidavit was made by an agent, without accounting for the absence of the principal, or giving any other reason why it was not made by Espy himself. But the objection does not seem to be well taken. It is easy to conceive that the agent might be cognizant of facts of which the principal knew nothing. In such cases it is eminently proper that the affidavit should come from the agent. That the agent is a stranger to the record can make no difference. Nay, for that very reason, his statements under oath are entitled to greater consideration than though made by the interested party himself. 2. It is objected that Rogers could not be the only witness by whom the payment could be proved, for that if |