The plaintiff foreclosed his lien as saw-mill owner against defendant for lumber furnished. The fi. fa. was levied, and the defendant made an affidavit of illegality. on various grounds, among them upon the ground that the affidavit of foreclosure did not set out the facts necessary in law to constitute a lien. When the case was called, the defendant moved to continue on the ground that the affidavit of foreclosure was lost; the court refused to continue for the term, but set the case down for trial on Wednesday of the next week, and required the plaintiff to have a copy of his affidavit established by that time on the penalty of having the case dismissed. On the day appointed the copy affidavit was not established, and the case was dismissed. The only reason assigned‘for its non-establishment was that the attorneys could not remember its terms; no further time was asked, nor did the counsel state when the copy could be established; on the contrary, if they could not remember the terms of the *214affidavit then, it seemed doubtful if they ever could. The older the transaction became, the less likelihood of remembering it would there be. The affidavit was essential to a proper understanding and adjudication of the case; the issue made by defendant was its insufficiency; a copy ought to have been made; time enough was allowed the counsel to make it; no further time was asked; no prospect held out that it would be established in the future; and we therefore think the court could do nothing else than to dismiss the case.

Judgment affirmed.