The opinion
The opinion of the Court was delivered by
Manning, J.
The counsel for the plaintiff who is appellee filed his brief and an order to the clerk to submit the case. The counsel for the defendant did not file a brief but made a motion for a continuance accompanied by a sworn statement, that at a meeting of the Directors of the plaintiff company attended by all of them, three in number, held on the 16th. of the present month, resolutions were unanimously passed directing the treasurer to pay Mr. Parrar his fee in this case and authorizing him to continue it.
*350 The plaintiff’s counsel insists that the case h'e heard and decided on his submission and denies that any lawful and proper authorization has been given for its continuance, or avers that the authorization appearing in the resolutions has been obtained improperly.
We cannot investigate the matter here. Evidence must, necessarily be taken by the lower court to ascertain whether a continuance is ordered or authorized by the plaintiff who has a judgment for over eight thousand dollars and who has prayed an amendment for ten per centum damages for a frivolous appeal.
It is therefore ordered that copies of the motion for continuance and of the statement and affidavit of the Directors of the plaintiff company be transmitted to the lower court which is hereby directed to take testimony for the purpose of ascertaining whether a continuance was properly authorized or authorized in fact, and also touching all matters connected therewith and return the same to this court speedily.