526 PLEADINGS, PRACTICE AND PROCESS. [ART. 75.

for the continuance shall comply with the provisions of the two
following sections.

36. The party applying for a continuance under the preceding
section, shall prove by his affidavit, or the affidavit of some other
credible person, to be filed in the cause, that the testimony of the
absent witness (naming him) is material, competent and proper
in such suit; that he believes that the cause cannot be tried with
justice to the party without such evidence; that he has used his
proper and reasonable endeavors to procure the same, and that
he has a reasonable expectation and belief that the same can
thereafter be procured in some reasonable time.

37. The court may examine, on oath, a party making the affi-
davit under the preceding section as it regards the materiality
of the testimony, the probability of procuring the attendance of
the witness in a reasonable time, and on what information or
knowledge he believes the witness will prove what he alleges,
and if on such examination the court is satisfied of the truth of
the affidavit, and that the testimony is material, a continuance
shall be granted unless the adverse party will admit the truth of
the facts which it is so alleged the absent witness will prove.

38. Where a new trial is granted, or a commission shall issue
for the taking of testimony, or where a judgment shall be set
aside for fraud or irregularity, the court may continue the cause
so long as they shall deem necessary for a trial of the same on
its merits.

39. Where a party to a suit dies, and new parties are made
or to be made, the court may continue the case so long as may
be deemed necessary for the due administration of justice, not
exceeding the end of the fourth court after the death is sug-
gested, unless by consent of parties, or testimony or plats are
wanting.

40. Where a party in any action brought to recover lands, or
in which the title thereof is involved, shall die, and the proper
person to be made a party in the place of the person so dying,
shall be an infant, such action shall not be tried during such
infancy unless the guardian or next friend of such infant satisfy
the court that it will be for the benefit of the infant to have the
action tried during his infancy, but the action may be continued
until the infant arrives at age.