delivered the opinion of the court. The plaintiff and appellant complains that the district court improperly denied 1 A ^ a continuance.

The affidavit on which he prayed it, states the materiality of the testimony relied on, and its absence without his fault or neglect.

*104He swears that, in June, he gave a memo- ° randum and directions to his attorney to pro-j 1 cure and forward a commission for obtaining the testimony: that soon after, the attorney fell sick, and, a few months after, died: that in the meanwhile, having discovered that the commission had not yet issued, he procured one, and forwarded it by mail to Mobile, in the state of Alabama, where the witness resides: the latter’s name, and the facts expected to be proven, are stated, and the other usual statements made.

The continuance was opposed on the ground that the petition had issued in January, and the application in October for time to procure testimony was too late: that the plaintiff urged he had not seen the account of the defendants till October, when it had been on file since June.

We think the continuance ought to have been granted. It is true the petition was filed jn January, but the answer was not filed until the middle of June, and the plaintiff could not tell what part of the petition was to be supported by testimony.

Jt appears he directed a commission to issue as soon as the answer was filed; his counsel *105fell sick, lingered, and died: before his death ° he had employed another attorney, and for- . warded the commission.

Although the defendant’s account may have been filed in June, we cannot, without injustice, disbelieve the plaintiff when he swears he did not see it till October. As he had employed counsel, he might have refrained from examining the papers filed in the suit.

It is therefore ordered, adjudged and decreed, that the judgment of the district court be annulled, avoided and reversed, the verdict set aside, and the case be remanded for further proceedings, according to law, and that the defendants and appellees pay costs in this court