delivered the opinion of the court. This appeal is from the refusal of the district court of a continuance.

The defendant swore that Mrs. Havard was a material witness—that the plaintiff resides in another state and his attorney has been absent from this, and consequently the defendant could not give him notice—that the defendant hopes to prove by her the precise time of the death of her husband, as whose bail he is sued.

The plaintiff’s attorney offered to admit the facts, as the defendant swore his witness could prove them.

It appears to us the affidavit was insufficient. Notice to a party, or to his attorney, of the taking of a deposition, need not be personal; it may, like any other, be left at his domicil. It is not shewn how long the attorney was absent; no diligence is said to have been exercised.

It is therefore ordered, adjudged and decreed, that the judgment of the district court be affirmed with costs.