
    Deas against Smith, President of the Columbian Insurance Company.
    If a witness has been'in the power of a plaintiff, he must show endeavors to obtain his testimony, or he will not be allowed to urge the want of it for not going to trial.
    Counter affidavits to those in opposition to a motion, not admissible.
    If'a suit be called and passed, the reasons why should be made appear by the counsel in the cause.
    If offers of compromise have been made to the plaintiff, and refused, on a motion for nonsuit, the court will not order them to be imposed, «< semb.
    
    Issue had been joined in this cause, in 1800, and two commissions had been sued out; one had been returned, but a long time having elapsed, the defendant gave notice, for the last term, that he would then move for judgment as in case of nonsuit. On the motion being brought [*172] on, the plaintiff *stipulated to try, at the next sittings, or circuit court, reserving to himself the right of applying to the court for a renewal of the stipulation, in case the other commission, then pending, should not be returned.
    
      Benson
    
    now renewed the application for judgment, on an affidavit, stating, that a few days after the above stipulation was entered into, the commission to which it alludes arrived, and that the cause had been duly noticed for the last sittings, but had not been brought on.
    
      Woods, contra,
    read an affidavit by the parties, on.account of whom the plaintiff had effected the policy of insurance, on which the present action was brought, stating the loss, exhibition of proofs, application for payment, refusal to pay, commencement of-suits, suing out of commissions, and their return. That the interest was not fully proved by the witnesses examined under the last commission, as they were privy only to the lading of what was purchased by one of the witnesses, and covered by a former policy, but knew nothing of the residue; that the cause was, nevertheless, noticed for trial, under an idea of proving interest in sundry other articles of the cargo by one York Wilson, who, though a seafearing man, the deponent believed to be permanently resident in New York, as he had lived there for twelve months uninterruptedly, but had lately gone to the East Indies; the deponent first learnt this circumstance during the time of the last sittings, and his witness was not expected to return before the ensuing winter; that being advised the testimony of Wilson was material, the defendant did not proceed to trial. But that he was advised, and believed, one William Bobinson, shortly expected here, was a material witness for him, and that he believed he should be able to obtain Bobinson’s attendance at the next sittings in New York, or the circuit thereafter; that, as the deponent was informed, and believed, the ground of defence insisted on by the defendant, was the want of interest in the assured, and that the deponent understood, and believed, the defendant, or some person in his behalf, offered to return the premium, and pay costs which offer the deponent refused to accept. That the deponent was informed, and believed, the cause was one of the *oldest on the calendar, but was, when called in [*173] its order, passed, for the accommodation of the defendant ; that the deponent would have proceeded to trial, but for a notice to produce certain papers, which he was not prepared to do. These reasons, Woods argued, were sufficient to prevent the object of the motion; at least, if a nonsuit was ordered, it would be on condition of the defendant’s abiding by his own proposal, and paying what was acknowledged to be due, the premium and costs of suit.
    
      Benson
    
    offered a counter affidavit to show that York Wilson was a slave, and therefore the want of his testimony could never have prevented the cause from being heard, because, had he been present, his evidence could not have been received.
    
      Woods
    
    contended, that counter affidavits were inadmissible, because, in the first place, a copy had never been furnished, and, in the next place, the practice was to exclude them, it being incumbent on the party moving, to support his application on his original.depositions.
    
      Benson
    
    acknowledged the general proposition, but distinguished the present case by this circumstance; that the counter affidavit was not to support the motion, but to contradict a collateral and independent fact, asserted by the plaintiff; and, as to not being furnished with a copy, the plaintiff had not given a copy of his.
    
      Woods.
    
    Copies of affidavits in exculpation are never afforded; those to charge or demand are.
   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 question is made whether it can be received. On examining into the point, the court 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. It does not sufficiently appear that the cause was passed for 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. 
      
       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.
     
      
      
         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 examined 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.
     