
    No. 3066.
    Morrison v. Jackson,
    November Term, 1892.
    After the opinion was filed in this case on February 19, 1892 (35 S. C., 311), the plaintiffs obtained a stay of remittitur until April Term, 1892, on the affidavit of Andrew E. Moore, Esq., that he had recently discovered that C. S. Thompson, of North Carolina, had heard John Jackson say that the last paper in the cause was a “deed of gift.” All of this was denied in an affidavit made by the said C. S. Thompson. At the April Term the remittitur was still further stayed, and the motion to permit plaintiffs to move on Circuit for a new trial on the ground of after discovered evidence, was coptinued. At this November Term, the motion was refused, the court saying:
    The rule or principle by which this court has been governed in determining motions of this character has been often announced. This court simply considers whether or not a prima facie case has been made out. If. such is shown, this court remands the case to the Circuit Court, in order to allow the moving party to apply to that court for a new trial, which court then acts upon the facts submitted to it, uninfluenced by the action of this court. In this case the appellants submit the affidavit of one as to a conversation had by him and another - man in North Carolina, in which the latter stated that a paper, supposed to be lost or destroyed, was a deed and not a will. Now, if the statement of this witness was in such form that it could be used as testimony, it would be important in a motion of this kind. On the other hand, however, the person referred to in the affidavit as making the statement that he had heard the declaration of Jackson that the paper was a deed, made his affidavit, which the respondents’ counsel has submitted, contradicting the affidavit of Moore, and that he would testify, if put on the stand, that Jackson told him that the paper was a will. Under these circumstances, this court considers that a prima fade showing has not been made.
    December 5,1892,
    
      S. Wilson for appellant. Duncan & Sanders, contra.
   Thereupon the following order was passed,

Per Curiam.

Upon hearing the motion in this case, the affidavit upon which the same is based, the affidavit in response thereto, the argument of counsel representing the appellants and respondents, and after due consideration, it is ordered, that the motion be, and the same is, dismissed. It is further ordered, that the remittitur be forthwith sent to the Circuit Court.  