Most of the questions raised by the assignment in this cause have been decided in the case No. 496 and 497, M. Stoddart et al. v. J. H. McMahan, at this term, and which need not now be noticed.

We think the court did not err in overruling the motion for a continuance. It was the duty of the defendant Stapp, after having been served with a notice to produce a certain paper, to have filed the same in the-cause, or see to it that the same was produced when called for; and on failure to do so,, he- was not entitled to a continuance for the non-production® of a writing in his own possession.

The affidavit fora continuance is also defective in not. setting out the name of the witness for whose testimony the continuance was sought. If the witness resided in the county, and had been duly subpoenaed,“most [cer*302tainly the name might have been given in the affidavit, that the court might have been assured that the requisite diligence had been used to procure the testimony of that specific witness.

We think, that under all the proof of this case, the charge asked by the defendants was properly refused by the court. And not being able to say that the verdict of the jury and the judgment of the court were manifestly against the weight of evidence, or the law of the case, we do not feel authorized to disturb either; and the judgment is therefore affirmed.

Affibmed.