As the only points upon Vhich the proceedings in this cause can properly be reviewed in this court, are those which were relied upon and presented in the court below in the motion for a new trial, the statement of the case need not, of course, extend beyond such of the facts belonging to it as apply to the points alluded to. Those points were, that the circuit judge improperly granted the plaintiff a continuane, and that the jury found their verdict contrary to the evidence.'

In relation to the first point, the material facts embodied in the bill of exceptions are, that when the cause was called for trial, on the fifth day of the September term of the Circuit Court in the year 1846, the plaintiff having moved for a continuance, and the defendant at first requiring a written affidavit, the court gave time until the next morning to prepare and file one. It seems, however, that the parties subsequently agreed that a verbal oath might suffice in behalf of the application, if made on that day, but that no such oath was then made, nor was any affidavit filed on next day, or subsequently during the term ; and the court proceeded on the morning of the sixth' day to the trial of several other causes, which were set on the docket after the cause in question ; on the afternoon of the same day, the cause was again called, and the plaintiff again moved for a continuance, it having been again agreed that the rersons might be stated orally, under oath. The plaintiff being thereupon sworn, and rendering no sufficient reason for the continuance prayed for, and the defendant insisting upon a trial, the court nevertheless continued the cause, and proceeded with the docket, alleging as a reason for it, that as the plaintiff demanded that his case should be tried by a jury, the court would entertain n® such causes on the afternoon of Saturday.

As the applicant for the continuance rendered no sufficient reason for it, the whole question concerns the competency of the court to continue it for the reason it has itself assigned. That the circuit judges should possess some discretion in reference to the management and disposition of the business before them need not, of course, be here argued. Such a discretion is often absolutely necessary, and consequently inherent, unless specifically inhibited, which is not pretended in the argument before us. We can well enough imagine, also, that the condition of the docket in this case may have suggested and justified a conformity to the greater necessity and propriety which existed for the more summary, disposition of a number of cases less contested, ' whore no jury was required, and where it might well enough have been imputed as a virtual delay of justice not to have heard them and rendered judgments. We feel consequently unauthorized from the record before us to impugn or otherwise qnes; tion the discretion which seems to have been exercised by the court below— particularly as it is not pretended by the defendant that he w'as subsequently, upon the final trial, in any respect prejudiced or injured for the want of the testimony of witnesses which he had ready at the time of the continuance.

*332The second and only additional reason assigned below why this cause should be tried anew was, that the verdict of the jury was against the evidence — it being alleged in the motion that there was.no testimony that the plaintiff’s decedent ever paid the money sued for, for the defendant, and that even if he did, there was no evidence that by tbe laws of Kentucky, where it was alleged to have been paid, any interest would be allowed (as the jury allowed in this case) on such a payment.

We apprehend the preponderance of authority in such cases to be, that unless the defendant shows that the rate of interest in the State where the liability occurred is less than it is in the State where the remedy has to be sought, the jury Will be justified in computing it according to the laws of the forum. As to the general proposition, it was determined in the case of Pease v. Baber, 3 Caine, 266, and has been since followed in all the American leading cases, that whether interest will be allowed at all or not, must depend upon the circumstances of the case. — each one depending upon the justice and equity arising out of the peculiar circumstances. We apprehend it will scarcely be doubted that this is a case in which the defendant, if liable at all, is. so liable, ex aequo et bono, to refund the interest as well as the principal.

Concerning the alleged misfindingof the jury upon the main point, as there was evidence from which they might find as they did, their province must of course, remain unusurped by this court, particularly after the judge who tried the cause, and who consequently heard the testimony has declined to interfere. The judgment of the Circuit Court is therefore affirmed.