Deas v. Smith

Per Guriam. The application is for judgment as in case of nonsuit; this is opposed by a deposition read by the plaintiff, disclosing facts, to rebut which, the defendant offers a counter affidavit :(a) a question is made whether it can be received. On examining into the point, the court [235] finds the practice to be settled against its reception. (Ante, 13.) It is expressly decided, in Grove ads. Campbell, Col Cas. 114, “that a party can never -support his motion by any affidavits but those on which he originally grounds it.” The motion must, therefore, depend on the first affidavits. From that by the plaintiff, among other things which it contains, it appears, that the commission mentioned in his stipulation, as the one then pending, was returned before *the last circuit, and that he might [*174] have then gone to trial. His affidavit further states, that the return was examined, and the proof wanted not contained in the answers to the interrogatories; that the interest required did not appear; that there was a witness who resided in Hew York, by whom it was expected to establish the same facts. This witness was not applied to, nor was any measure taken to procure his testimony till after the commencement of the court, and then he is found to be gone to the Bast Indies. There is, however, another witness, who knows something material, but it is not stated what, nor that any measure is taken to procure his attendance. It is further stated, that this is one of the oldest issues; that it was called on and passed, for the accommodation of the defendant, though it is before sworn he did not proceed to trial, because the testimony of York Wilson was, as the plaintiff was advised by his counsel, material, and could not be had. The court are of opinion the reasons are not sufficient. This is a second application for judgment: there has already been a stipulation, and that a special one. The want of a witness is alleged, and no diligence shown to procure him. There ought to have been immediate measures taken to subpoena him.(a) It does not sufficiently appear that the cause was passed for [236] the accommodation sworn to: it was necessary to have substantiated this; it rests on the single oath of the party; the counsel, himself, ought to have stated this. But, though we should grant the nonsuit, we are requested to do this on condition. The affidavit, as to making the offer, ia equivocal; and if, in any case, we would impose such terms, this is not one, for the plaintiff has not discloséd enough to show the proposition was ever made. Benson pressed the court to reconsider the case in Coleman, and weigh his distinction. Per Curiam. We shall look into it, and if we see occasion to alter our opinion, the bar will he informed of it. In the meantime, judgment of nonsuit must be entered. Motion granted. Lewis, Ch. J., absent. N. B. — The court never spoke to it again. Footnotes [(a)] Counter affidavits are those in opposition to an affidavit read; supplementary affidavits are those in addition: the former are always received by way of defence to an application, except as against merits sworn to, on moving to set aside an inquest; (Phillips v. Blagge, 3 Johns. Rep. 141,) but even then to rebut an excuse for not noticing for the first day of term, they are admissible. Quin v. Riley, Ibid. 362. So counter affidavits are allowed in support of'the character of a person, on whose deposition the motion is made, if his character for veracity be attacked by the affidavits adduced in opposing the application; but not if the counter affidavits support his character collaterally, by only a further swearing to the same facts. Clark v. Post, 3 Caines’ Rep. 125. And observe, that affidavits in addition to these used by the plaintiff on showing cause of action before a judge, may be read as counter affidavits, on an application by the defendant to the court for an exoneretur on the bail piece. Hart v. Faulkener, 5 Johns. Rep. 362. See also Wilcox v. Howland, 6 Cow. 576. [(a)] The rule is, that a new trial shall not be granted for want of testimony which a party had it in his power to adduce. Palmer v. Mulligan, 3 Caines' Rep. 307. Yet in ejectment, and in favor of an old possession, a new trial was granted to let in testimony in the knowledge of a witness who was ex [236] amined on the first trial, but with which circumstance, the person who had the management of the suit was not acquainted till after the cause had been tried. Jackson, ex dem. Gardner and others, v. Laird, 8 Johns. Rep. 489 See De Peyster v. Columbian Insurance Company, 2 Caines’Rep. 85 ; Steinback v. Same, Ib. 129; Malin v. Malin, 15 J. R. 293 ; McKay v. Marine Ins. Co., 2 Cai. R. 384; Hooker v. Rogers, 6 Cow. 577.