15 Tex. 41 | Tex. | 1855
There was no error in overruling the demurrer to the petition.
Whether the instrument sued on be a promissory note or not is immaterial. It was set forth in terms in the petition, (4
The promise by the defendant to the plaintiff, of the sum stated in the instrument, is equivalent to a promise to pay the amount. This is the only reasonable meaning and intent of the terms; and whether the omission of the words “ to pay,” leaves a doubt of the instrument being technically a promissory note or not, is not material. The instrument, at least, is evidence of a contract; and the admission of the consideration dispensed with the necessity of setting it forth specifically. (11 Tex. R. 415.)
Nor was there error in overruling the application for a continuance. The affidavit was made by the attorney, stating his belief that the defendant was detained at home by the sickness of a member of his family; that he had been informed by the defendant that he had used due diligence to procure the attendance of a material witness, by having a subpoena lodged with the Sheriff of the county. This fact is one, of which the attorney might have informed himself by reference to the Sheriff, and should have been sworn to positively. But such fact alone, if stated by the party himself, has been held to be insufficient, and not the diligence required by the Statute. (11 Tex. R. 155.) The date at which the subpoena was lodged . should at least be specified, that it might appear whether time had been given for service, and whether there had been in fact such diligence as is contemplated by law.
The facts, stated, not showing legal diligence, the motion for continuance was rightly refused, and the judgment is ordered to be affirmed.
Judgment affirmed.