Duncan, Sheehan & Co. v. Nathaniel Niles.
Continuance—requisites of affidavit. An affidavit for a continuance upon the ground that the defendant is in the military service of the United States, should state facts showing why his presence is necessary “for a full and fair defense of the suit.
This was a writ of error to the Circuit Court of St. Clair county.
The defendant, by his counsel, entered his motion for a continuance of this cause, the application being grounded upon an affidavit made by Jacob Thoma, in which it was declared that “said defendant, Nathaniel Niles, is in the military service of the United States, as colonel of the 130th Reg. Ill. Vol., and that affiant verily believes that said defendant’s presence is in some degree necessary for a full and fair defense of said cause.”
*542Per Curiam:
This application is made under the act of
May 3d, 1861 (Sess. acts, 26), which declares that it shall be a sufficient cause for a continuance, on motion of the defendant, if it shall be shown, to the .satisfaction of the court, that the defendant is in the military service of the United States, or of this State, and that his presence is in any degree necessary for a fall and fair defense of the suit. The affidavit in this case is insufficient. The court must be satisfied, upon the facts set forth, that the presence of the defendant is, in some degree, necessary; the mere statement in the affidavit that his presence is necessary, will not suffice.
Motion denied.