David Deas v. Paschal N. Smith, President of the Columbian Insurance Company, 1 Cole. & Cai. Cas. 221

Per Curiam. 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 question is made whether it can be received. On examining into the point, the court finds the practice to be settled against its reception. It is expressly decided, in Grove ads. Campbell, ante, 115. “ 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 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 JVewYork, 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 East-Indies. There is, however, anoiher 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.

It does not sufficiently appear that the cause was passed for the accommodation sworn to i it was necessary tó. 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, is equivocal ; and if, in any case, we would impose such terms, this is not one, for the plaintiff has not disclosed enough to show the proposition was ever made.

Benson pressed the court to reconsider the case determined in October term, 1800, and weigh his distinction. Per Curiam. We shall look into it, and if we see occasion to alter our opinion, the bar will be informed of it. In the mean time, judgment of nonsuit must - - be entered. N. B. The court never spoke to it again. Grove ads. Campbell.