The Russellville Democrat., 1876-05-11
SUPREME COURT DECIS
 IONS.
Abstracts Prepared by Chan|
 cellOr John R. Eakin.


 Winters vs. Bordell ct al. Al
 peal from Ouachita county.
 Bordell ct al. sued Winters fc damages, alleging fraud and dc ceit in paying them worthles notes in . trade for horses an mules, representing them to b on solvent men. Judgment fo plaintiffs below, from which Win ters appealed. Opinion by s. W William ;, special judge.
 ABSTRACT.
 In an application for a contir uance it is not sufficient to alleg due diligence. Tine act constituting the due
 diligence should be submit to the court that it may judge Q them, and the action of the coul thereupon is matter of discretion which, if not abused, this cour will not control.
 A cause should not be continu ed for an absent witness until tn issues are made by the pleading. Material facts alleged in a com plaint, and not denied in answer need not be proved. A party has a right to lay foundation for attacking the cree it of a witness, by asking hi, with certainty of ftime, place, an| circumstance, if he did not mak certain statements material to th| matter in controversy. It is errt| for the court to refuse to allo the question.
 In case like this, the knowl edge of the country, and the ped pie, on the part of plaintiffs below was material, as tending to sho they took the notes on their ow judgment. Or plaintiffs, o| cross examination, might hay been asked what they were tol on these points (with regard q the general solvency of thepeople in certain conversations to whic| they had alluded in their test mony in chief.
 Tax books are evidence, ft what they are worth, to go to tl jury on Q question of solvency, q the ground that they are made | a sworn officer, on. sworn stat ments without any view to u | pending litigation.
 The insolvency of the makei of the notes may be proved | parol evidence. Executions an returns of nulla bona were nc necessary.
 The law, from policy, will nc define fraud. The court in eao particular case takes care that I one is injured by falschood or a titice, which is, however, subje' to general rules. The fraud mus. be material to the contract, mus work an injury to one who nc only relied upon the good faith the other, but had a right to do
 Fraud, committed by a party ( his agent, avoids q contract : initio.
 In an action for fraud, a jul may, in some gross cases, gi, positive damages.
 Where there has been a fal. warranty fraudulently made tl injured party may sue on th warranty or repudiate the co, tract and sue for damages for th deceit.
 It is improper in the court instruct the jury that anything strong evidence. The jury mus be left to judge of its strength.
 In a sale of notes, it is not co, elusive against fraud, that a thir party was called and selected tn notes sold cut of a batch furnishe By the vendor, even although th. were done with the assent of tn vendees. The question of frau Tn the transaction is still for tb jury.
 To hear or refuse to hear arg ment on motions is within tL sound discretion of the court be low.
 Judgment reversed and caus remanded for a new trlal.
 NoTE.-The instructions an points arising oa exceptions al .rgucd at length in the opiniol Many familiar points of law al recognized and declared. Tn norc salient only arc given aboy.