Callen against Kearny

Callen against Kearny. Counter affidavits will not be heard in support of a motion even as to the character of witnesses. A feiv/ict having been rendered for the plaintiff, a motion was now made for a new trial upon the ground of newly discovered evidence ; and the affidavits of several witnesses were produced tending to impeach the plaintiff’s claim, which witnesses the defendant swore he knew nothing of till after the trial. On the part of the plaintiff, affidavits were read, among others, impeaching the credibility of one of the defendant’s newly discovered witnesses, and tending to show that others of his pretended witnesses were not in existence, and that the defendant had imposed fictitious affidavits upon the Court, by procuring some individuals to make the affidavits in feigned names. P. Ruggles and A. Spencer, for the motion. A. Burr, contra. At another day, A. Spencer' proposed to procure and read counter affidavits to support the credibility of the witness impeached, and show that the others were real persons. He said the affidavits upon the other side were a surprise upon him at the argument, and he was not then prepared with authority to show that counter affidavits were admissible. Since that time he had examined Pomroy v. The Columbian Insurance Company, (2 Caines’ Rep. 260,) which established the admissibility of the affidavits to impeach the credibility of the witnesses, and he found by a note at the end of that case, that evidence is also admissible to sustain it. [MAJORITY — Curia.] Curia. It is contrary to the uniform practice, to receive counter affidavits in support of a motion. This has never been done even in support of character ; and if their admissibility were matter of discretion, we think it would be an abuse of that discretion to hear them Motion denied.