¶1delivered the opinion of the Court:
¶2No cause for continuance was shown. A general statement that “plaintiffs can not safely go to trial, for want of material testimony, ” is wholly inadequate for such a purpose. Before a party can demand, as a legal right, that a cause shall be continued, he must produce an affidavit, such as is prescribed in the Practice act. The affidavit, as stated in the abstract, gives neither the name nor the - residence of any witness, nor does it state the substance of the testimony sought, nor does it show any diligence used, or any excuse for want of diligence.
¶3As to the application to change the form of action, it would seem to have been entirely unnecessary. If it be true that such a fraud was practiced upon plaintiffs in this sale as would subject defendants to an action on the case for fraud, and if it be true that plaintiffs in apt time claimed to rescind on that ground, and offered to restore defendants to their former condition by a tender of all they had received from them, and demanded the land, and this was refused, it is not perceived why an action of assumpsit would not lie in case the bonds were taken as payment, as well as in a case where they were taken merely as security. Even if this were not so, we can not, from the meagre statement contained in the abstract, say that the refusal to permit the change was an abuse of judicial discretion.
¶4Finding no error apparent, the judgment of the Appellate Court is affirmed.
¶5Judgment affirmed.