The affidavit for a continuance of this cause was insufficient. It does not state the residence of the witness, neither positively nor by any fair inference. This is indispensable, as connected with his identification, and diligence in obtaining his attendance.
The plaintiff, on the facts shown, should not have been permitted to testify, for the reason, that he did not take the preliminary oath required by the statute. 1. He did not make affidavit that he had a claim or demand against the defendant. 2. He does not show, in the affidavit, that he had no witness or other legal testimony to establish whatever demand it may be inferred he did have. On the contrary, he shows he had two witnesses, Fisher and Brown, by which he could establish it, and he was required to use diligence to obtain their testimony. Because he has not been diligent, he cannot resort to this privilege conferred by the statute.
The first instruction given on behalf of the plaintiff was wrong.
The defense set up was the special contract to work one year for a stated sum.
The instruction is, “ If the jury believe, from the evidence, that the plaintiff worked for the defendant, from the 14th of April to the 21st of June, 1856, then they will find for the plaintiff the value of the work, as shown by the testimony, deducting such payments as the defendant has made to plaintiff.”
This instruction excludes from the jury, entirely, all consideration of the proof of a special contract. Merely working for the defendant, which is the point of this instruction, does not give the plaintiff a right to recover, if a special contract existed under which the work was done, and that contract violated by the plaintiff himself.
For these errors the judgment is reversed, and the cause remanded. As to the apportionment of the costs, it has always been held discretionary with the court, and with its exercise we cannot interfere.
It is not customary to ask the court to instruct the jury, after they have retired. Instructions are asked for, and disposed of, before the jury retire. They may be called into court for further instructions, at their own request, or by consent of parties or their counsel.