The affidavit of the 24th of May, 1854, was manifestly insufficient to entitle the defendant to a continuance. It is not pretended that the materiality of the proof, which it was proposed to make by the witness, was not previously known to the defendant. Ample time had been afforded him to procure the attendance or depositions of his witnesses. If the witness Webb was really a material witness for him he should have shown very satisfactorily why it was that the fact did not come to his knowledge until the day before the trial: too late to obtain his testimony, and just in time to make the want of it the ground of an application for a third continuance of the cause. If, in truth, he had received information of the materiality of this witness but the day before, he should have produced the affidavit, to that effect, of the person who communicated the information. After his repeated affidavits for continuances, on account of the absence of witnesses, whose testimony, it does not appear, that he afterwards took any steps to procure, he should have satisfied the Court, by some evidence, other than his own affidavit, that the witness was really material, and that it was not owing to his own want of diligence that he had not taken steps to obtain his testimony, or even become informed of its materiality. Besides, he does not state, as the law requires, “that the testimony can not be obtained from any other source;” (Hart. Dig., Art; 815.) but only that he “does not know that he can establish the same fact satisfactorily by other proof.”

The Court might well have refused to entertain another affi*246davit for continuance, after this was overruled ; and having heard it, in the then attitude, and under all the circumstances of the case, it came in so questionable a shape, that we cannot say it was entitled to credit, either as to. what the defendant expected to prove by the witness, or as to the absence of the witness being by his procurement or consent; and we are of opinion that the Court did not err in refusing a continuance.

The alleged excess in the judgment is not assigned as error, and is too inconsiderable to require notice. The judgment is affirmed.

Judgment affirmed.